Claim Case Study Scotland: Access Background
Solution
The insured purchased a large residential property in disrepair and commenced work to renovate it immediately. The only vehicular access route to the property was via an accessway.
First Title obtained further advice from Counsel on the insured’s rights over the accessway.
Challenge Three months after the purchase of the property, the insured received a letter from the owner of the accessway who requested that the insured confirm that they have no right of access over it. The owner requested that the insured stop using it and, when the insured continued to use it, they placed an obstruction on the accessway to prevent the insured getting any vehicles to the property. There was nowhere for the insured to park nor was there any other access to the property by car. The insured raised a claim with First Title against their policy which provided cover in the event the insured was prevented by the legal owner from using the accessway leading to the property.
Counsel confirmed that the insured did not have a prescriptive right of way over the accessway, this was because the original vehicular access to the property had been stopped by the local Council and access was now via a new housing estate. This had not been used for a sufficient period of time for prescription. Counsel also confirmed that it was not a public right of way. Counsel did advise, however, that the insured could establish a servitude right of way by acquiescence. Counsel prepared a Court of Session Summons which asserted the insured’s servitude right over the accessway by reason of acquiescence. This was sent to the owner of the accessway prior to it being issued at Court, which prompted the owner of the accessway to enter into settlement negotiations with the insured for a registered right of way over the accessway. A successful negotiation resulted in settlement being agreed, on the basis that the solicitors, acting on behalf of the access way’s owner, would finalise a Deed of Servitude to give the insured a right to use the accessway. In accordance with the terms of the policy, First Title also met the legal and expert costs incurred in connection with this matter.
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