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'You have the right to remove...' or do you?
There is a line of authority in Scots law, culminating in Anderson v Brattisanni’s (1978 SLT (Notes) 42), to the effect that, in exceptional circumstances, the court has an equitable power to refuse enforcement of a proprietor’s right in a question of encroachment by a neighbouring proprietor.
The exact nature and scope of the court’s equitable power was recently considered by the Sheriff Principal of the Sheriffdom of Grampian, Highland and Islands sitting at Dingwall (ed. for the last time?).
It isn’t necessary to go into the full facts and circumstances of the case – the Sheriff’s judgment after proof runs to 160 pages – but it is enough to say that the encroachment consisted of a drive way and yard on part of the pursuer’s property.
In the course of his discussion, the Sheriff Principal helpfully reminds us that the equitable principle is not, strictly speaking, a rule within the law of property – given that neither party’s rights in property are affected by it – but is in effect a rule within the law of civil remedies.
He then very helpfully, having considered the legal history behind Anderson v Brattisanni’s, summarises the law as it now stands in terms of the following rules:
1. The principle is part of the law of civil remedies, not the law of property. In its application it creates no new rights; it merely prevents the proprietor from exercising a right;
2. The principle is an exception based on equitable considerations. (Indeed, in Grahame v Magistrates of Kirkcaldy the Lord Chancellor compares it favourably to the law of equity as practised by the English Court of Chancery (at p 96).);
3. The party seeking its application must have acted in good faith, or as in Grahame v Magistrates of Kirkcaldy not done so but thereafter had taken steps to remedy its previous failings;
4. The principle will be applied only sparingly and in exceptional circumstances;
5. It has, to date, been applied only in cases where the encroachment was by a physical thing, such as a gable wall or an extractor flue attached to a wall;
6. The encroachment must be inconsiderable and does not materially impair the proprietor in the enjoyment of his property, by which is meant his property as a whole and not the piece of ground which has been encroached. Indeed, in all the authorities before Anderson v Brattisanni’s the piece of ground upon which the thing was constructed was lost altogether;
7. Its removal would cause to the encroacher a loss wholly disproportionate to the advantage which it would confer upon the proprietor. In calculating that advantage the court will take into account whether or not the encroaching party has offered compensation or, if not, whether it is open to the court on the evidence to fix a value for reasonable compensation;
8. Future as well as past economic loss will be taken into account.
Ultimately, the Sheriff Principal held that the exception did not apply, and that the pursuer should be entitled to have the defenders removed from his property. In coming to that decision, he had regard (amongst other things) to the fact that the case was not so much about encroachment, but actually about the creation, in anything other than name, of an heritable and irredeemable servitude right of vehicular access in favour of the defenders’ over the pursuer’s land. He considered that that was a step too far in the context of a principle which should be applied only exceptionally and sparingly.
As something of an aside, he noted that the right to exercise the exceptional equitable power rests with the superior courts, and therefore, if the principle is to be expanded, it is not properly the role of inferior courts to do so.
Gordon Munro v Walter Finlayson and others (2015 SCDING 16)
http://www.scotcourts.gov.uk/search-judgments/judgment?id=7e8dcaa6-8980-69d2-b500-ff0000d74aa7