Head 16 - servitudes

Question 1

What are servitudes?

Answer 1

💡 A ‘servitude’ is a real right that allows a landowner to enter or make limited use of neighbouring land. Classic example would be the right of access

Question 2

What is the governing legislation

Answer 2

Servitudes are regulated primarily but he common law but also by the Title Conditions (Scotland) Act 2003 or the TC(S)A 2003

Question 3

Why are servitudes needed?

Answer 3

• The need to make some limited use of one’s neighbours land
• The need to control a neighbour’s anti-social activities
• The need for a mechanism for maintaining property owned or used in common

Question 4

What are the two properties requirements for a servitude?

Answer 4

Servitudes require two properties which are: neighbouring and in separate ownership

Question 5

What are the terms used regarding servitudes?

Answer 5

Benefitted property: entitled to enforce servitude rights and
Burdened property: obliged to accept this
The obligation attaches to the burdened property, so the right attaches to the benefitted. It is said that servitudes ”run with the land”

Question 6

Do the benefitted and burdened properties have to be adjacent?

Answer 6

Normally the benefitted and burdened properties will be contiguous (adjacent), however, this is not an absolute requirement.
They are only required to be in the same neighbourhood and must be reasonably close or else the praedial requirement will not be satisfied.

Question 7

In order to qualify as a servitude a right must?

Answer 7

Consist of a right to enter/ make limited use of the burdened property

Question 8

What are the two types of servitudes?

Answer 8

1. Positive servitudes: such as access, they involve a right to enter or make limited use of the burdened property. The right must be limited and therefore cannot confer unrestricted use of the burdened property
2. Negative servitudes (no longer applicable as they have been all converted to real burdens) these are used to restrict.

Question 9

What is the Praedial benefit?

Answer 9

A servitude must be ‘praedial’ in nature, this means that it must burden the burdened property for the benefit of the benefitted property and not for the personal benefit of the letters owner.

Question 10

What are the cases concerning Praedial benefit?

Answer 10

1. Patrick v Napier (1867) and
2. Regency Villas Titles Ltd v Diamond resorts (Europe) Ltd (2018)

Question 11

What does it mean when it is stated that a servitude must not be ‘repugnant with ownership’?

Answer 11

Where a servitude creates a right it must be that of a limited nature. Use which is too invasive of the burdened proprietors is repugnant with ownership and is not permitted.

Question 12

Does a servitude need to be registered and made known to the law?

Answer 12

Except in the case of a servitude created by writing and registration on or after 28 November 2004, servitudes have a right to be known to the law as a servitude.

Question 13

What are the list of known servitudes.

Answer 13

Way, parking vehicles, service media (Aqueducts, Acquehaustus, Sinks), Support, Stillicide, Pasturage, Extracting materials, Overhang, Bleaching and drying clothes

Question 14

What is the three gradations of the servitude of way?

Answer 14

1. Iter (Pedestrian)
   2 Actus (right to lead cattle)
2. Via (Vehicular)
3. Railway

Question 15

What is the principle of the servitude of way?

Answer 15

The greater right includes the lesser (therefore, where a vehicular right of access along a road is held, the benefitted proprietor may also go along it by foot.)

Question 16

What is the case which established th eseritude of Parking Vehicles?

Answer 16

Moncrieff v Jamieson 2008

Question 17

What are the three types of service media?

Answer 17

Buildings require to be serviced.
1. Aqueduct (the right to lead water through the property, and TC(S)A 2004 s 77 has also extended this right o other fluids.)
2. Aquehaustus (the right to take water from a river, loch or other source on burdened property. More important in rural than urban areas where there exists the mains water supply.
3. Sinks (also called drainage. It permits the benefitted property to drain water to the burdened property it can be used for sewage.)

Question 18

Is it possible to create a new servitude?

Answer 18

It is possible but extremely difficult, The new servitude must be closely analogous with an existing one or it is required to be created due to social/technological/economic change and is in conformity to the existing criteria for servitudes

Question 19

How are servitudes created

Answer 19

Many ways: Express grant, Implied grant, implied reservation, Positive prescription, by acquiescence

Question 20

What is an express grant?

Answer 20

A servitude may be expressly granted by the owner of the burdened property. As it is a real right in land it is required to be in writing in accordance with ROW(S)A 1995 s 1(2)(b)

The benefitted and burdened property must be
identified but the content of the servitude need not be as each type has well defined characteristics

This must be followed by registration against both properties according to TC(S)A 2003 s 75

Question 21

What is an implied grant

Answer 21

• Unlike real burdens, servitudes can be created by implication. This can happen only in a conveyance.
• The idea is that at the time the benefitted and burdened properties were divided a servitude was implied.
• A servitude may be created by implied grant where the benefitted property is conveyed.
• But implication is not automatic.
• A servitude will be impliedly granted only where this is as stated in the case of Cochrane v Ewart “necessary for the reasonable enjoyment of the property.”

Question 22

What is implied reservation

Answer 22

• Implied reservation is the factual converse of implied grant
• Here it is the burdened property which is conveyed
• Authority states that the test is stricter than that for implied grant

Question 23

How can servitudes be created by positive prescription?

Answer 23

A servitude may be acquired by 20 years of ‘possession’ ie exercise according to PL(S)A 1973 s 3(1) and (2)