Hunter v Fox

A negative servitude must be construed strictly because the law presumes freedom of property. The provision is effective where a reasonable reader with competent knowledge of English would have no real doubt about its meaning when read in context.

Ambiguity, contradiction or obscurity which leaves more than one reasonable meaning makes the burden unenforceable. Defective drafting alone does not. Words which have no plausible meaning in context may be disregarded as surplusage where the remaining language forms a complete and unambiguous provision. The court may not speculate about the conveyancer’s intention or supply missing language to complete an otherwise incomplete burden.

A disposition imposed a negative servitude of prospect. It prohibited the planting or growth of shrubs or trees, and the construction of erections, which would exclude a clear and open view of the sea from the dominant tenement. The disputed provision included the words “at present”.

The Lord Ordinary held that the provision created a valid and enforceable servitude. The First Division of the Court of Session reversed that decision, holding that the disputed words made the burden ambiguous and therefore unenforceable.

The central issue on appeal was whether those words introduced a material ambiguity or were meaningless surplusage which could be disregarded.

1. Appeal allowed unanimously; the Lord Ordinary’s interlocutor restored. Lord Reid delivered the leading speech. Viscount Radcliffe agreed, Lord Pearce agreed entirely, and Lord Guest reached the same conclusion in a separate speech.

2. Per Lord Reid, words purporting to create a negative servitude must be construed strictly, since there is a presumption in favour of freedom. A purchaser is entitled to rely upon the Register of Sasines. The purchaser is concerned with the recorded language, rather than the intention of the person who created the burden.

3. Per Lord Reid, strict construction asks whether a reasonable person with competent knowledge of English could have any real doubt about the provision’s meaning when it is read in the context of the disposition. A provision is ineffective if it is self-contradictory, materially obscure, ambiguous or reasonably capable of more than one meaning. The court cannot extract a meaning from obscure language or choose between reasonably possible meanings. Clear meaning nevertheless satisfies strict construction, despite defective drafting.

4. Per Lord Reid, the words “at present” had no plausible meaning in their context. It was impermissible to speculate about what the conveyancer might have intended to write, since that exercise would manufacture an ambiguity from meaningless language. The remainder of the provision was complete and appropriate to create a permanent servitude. The disputed words therefore constituted surplusage and did not invalidate it. The court could not have supplied omitted language if the provision had otherwise been incomplete.

5. Lord Guest likewise held that the clause had to be read as it stood. The disputed words were nonsensical in context and neither added to nor subtracted from the remaining language. They could therefore be treated as pro non scripto. References to the disponee’s successors and the disponer’s successors reinforced the conclusion that the burden was intended to operate perpetually.

1. House of Lords: The appeal was allowed unanimously. The Lord Ordinary’s interlocutor declaring the negative servitude valid and enforceable was restored.

2. First Division of the Court of Session: The court reversed the Lord Ordinary and held that the servitude was invalid and unenforceable because the disputed wording created ambiguity.

3. Lord Ordinary: The Lord Ordinary held that the clause created a valid and effective negative servitude of prospect and granted declarator in favour of the appellant.