Head 17: Servitudes Flashcards
s 122 Title Conditions (S) Act 2003
- Servitudes (a) (predominantly common law and 2003 Act)
⁃ A servitude is a right of one landowner to make some limited use of neighbouring land - the classic example is the right of access
- Servitudes are regulated primarily by the common law and also by several important provisions in the 2003 Act.
- Usually made due to the need to control his anti-social activities, and the need for a mechanism for maintaining property owned or used in common. [For the default rules of neighbour law, see Head 22.] - Real burdens (b)
⁃ A negative or positive obligation affecting land (e.g. an obligation to maintain a wall.) - Conditions in long leases (d) (registrable lease over 20 years).
⁃ These are conditions in long leases, but doesn’t include the rent.
Can title be varied or extinguished? Why would they need to be?
Yes. Due to:
- The need to make some limited use of one’s neighbour’s land (Servitude)
- The need to control his anti-social activities, (Real Burden)
- The need for a mechanism for maintaining property owned or used in common.
What does servitudes require?
Servitudes require two properties which are:
⁃ (i) neighbouring [They are typically contiguous but not necessarily.] and
⁃ (ii) in separate ownership [no one can have a servitude over his property - res sua nemini servit). But it is possible for a servitude to be registered by an owner of land which does not take affect until the land is subdivided.
These are the benefited property (property entitled to exercise the servitude) and the burdened property (more traditionally called the ‘dominant tenement’ and the ‘servient tenement[ Tenement here means land or property. ]’.)
Do servitudes end when the burdened property is sold?
No - Servitudes ‘run with the land’. The rights are automatically transferred when they sell their land. This is because servitude is a real right.
Do the properties have to be adjacent?
Usually they are adjacent but this is not an absolute requirement. They only require to be in the same neighbourhood. But the properties must be reasonably close or the ‘praedial requirement’ will not be satisfied.
Can the burdened property be anything else apart from incorporeal heritable property?
benefited and burdened property can also be incorporeal separate tenement e.g. The hole roof a right of salmon fishing may need a servitude to get access to the river.
What are the four key rules to qualify as a servitude?
In order to qualify as a servitude a right must:
⁃ (a) consist of a right to enter/make use of the property of another (the burdened property);
⁃ (b) confer praedial benefit[ For the benefit of land, not the benefit of a person.], ie it must burden the burderend property for the benefit of the benefited property and not just for the personal benefit of the latter’s owner - benefit on the property belonging to the holder of the right (the benefited property); it must be to do with the land (it mustn’t simply be personal). So a right to sing on someone’s land probably couldn’t be a servitude since it is not praedial.
⁃ (c) not be ‘repugnant with ownership’[ Essentially it must not be too invasive.] (TCA s 76(2)); and
a servitude must not be so invasive that it prevents the owner of the burdened property from using their land.
Much of the recent discussion has focused on servitudes of parking (because if you have a car parked at all times on burdened land then arguably this prevents the owner from using that land). The landmark case is *Moncrieff v Jamieson 2008.
⁃ (d) except in the case of a servitude created by writing and registration on or after 28 November 2004, be a right known to the law as a servitude (TCA 2003 s 76(1).)
Can servitudes be negative?
In relation to (a), it was previously competent to create as a servitude a restriction on building, known as the negative servitude of light/prospect [ view]. But on 28 November 2004 all existing negative servitudes become real burdens, and no new such servitudes are allowed (TCA 2003 ss 79 and 80)[ negative servitudes were converted into real burdens]). Thus all servitudes are now positive (ie involve the use of the burdened property).The Act says real burdens can not be negative (s79).
Patrick v Napier (1867)
(Said the right to fish for trout in a neighbouring stream was insufficiently praedial to be a servitude, since fishing was not to the praedial benefit of his land.[ The only personal servitude recognised in Scotland is liferent. In practice, the term ‘personal servitude’ is seldom sued here. ])
Harper v Lindsay (1853)
held that a right of skating or curling on a loch during appropriate cold weather cannot be a servitude.
Is there a fixed list of servitudes?
Case law has developed what almost amounts to a fixed list of servitudes.[ The courts decided to limit the use of servitudes since historically servitudes did not need to be included on the title sheet of the property] .
In effect prior to 28 November 2004 there was a fixed list and the courts were reluctant to extend it. The reason is that servitudes don’t have to appear on the Land Register[ NB the rules are slightly tighter post 2004.] and it is sometimes hard to discover them, so the courts have tried to protect purchasers.
If it makes the list its fine, if it doesn’t then it’s probably not fine.(s.76 disapplies this rule; **s75 requires the registration of a servitude against the burdened AND the benefited property.).
So essentially this list no longer applies to servitudes created expressly since 20th November 2004 as they will be on the register (s.76 and s.75)
What might the fixed list of servitudes look like?
(1) *Way (passage/access).
⁃ Distinguish (a) iter (pedestrian) (b) actus (right to lead cattle) and (c) via (vehicular) and (d) railway.[ NB the general rule is that the greater includes the lesser, so that if you have a vehicular right of way then you can also walk along it.]
- Essentially, the greater right includes the lesser, e.g. Where a vehicular right of access is held the benefitted proprietor may also go by foot.
(2) Parking vehicles.
⁃ This was not a servitude under Roman law - only in 2007 that a right to park vehicles was definitively accepted. Can you have a servitude of parking which will run with the land? This was settled by HL in
⁃ *Moncrieff v Jamieson 2008 - house in Shetland at bottom of cliff. Couldn’t park car next to house, and there was a servitude of access to the house at the top of the cliff. Question of whether there was also a servitude of parking ancillary to this. Held that this did include the servitude of parking (and the servitude of parking can be free-standing). From tutorial - look up when parking can become an ancillary right of access
- It can be a stand-alone right or ancillary to a servitude of access.
(3) Service media. Building require to be serviced. Distinguish:
⁃ (a) Aqueduct (watergang, Latin aquaeductus). This is the right to lead water through burdened property. Now extends to any pipe, cable, wire etc: TCA 2003 s 77.
⁃ (b) Aquaehaustus. Right to take water from river, loch stream or other source on burdened property.
⁃ (c) Sinks. (Drainage or outfall) Right to send burdened property water other than in its natural state. Capable of including sewage.
(4) Support. Distinguish:
⁃ (a) oneris ferendi: this is the right to be supported by adjacent building (support by subjacent[ I.e. a building below.] building is a statutory right under TA 2004 s 8: see Head 20);
⁃ (b) tigni immittendi (right to insert beam into neighbouring building).
(5) Stillicide (eavesdrop). Right to allow water to fall from eaves (i.e. the roof onto your neighbours land (burnered property)).
(6) Pasturage. Right to pasture (graze) animals[ This was originally cattle but case law has made it clear it is possible with sheep too.] on burdened property.
(7) Extracting materials. Distinguish:
⁃ (a) Fuel, feal and divot. Right to take peat for fuel and turf for fencing and roofing. Restricted to needs of the benefited property[ So you could take the peat or turf in order to benefit your property, but you couldn’t take the peat/turf and sell it].
⁃ (b) Building materials. Right to take stipulated materials (eg stone, sand) for purposes of building on benefited property.[ Same as above - for the purposes of building on the benefited property - not to sell the building materials.] They may only be used for this purpose.
(8) Bleaching and drying clothes.(St Clair v Dysart Magistrates - difficult to reconcile with the praedial rule but it is particularly important in tenements where there is a drying green at the rear of the building but this belongs to the ground floor proprietor rather than being held in common
(9) Overhang/projection.
⁃ It wasn’t clear if this could be a servitude but it has been made clear in recent case law.
- Whereby part of a building may overhand into a neighbouring landowner’s airspace.
⁃ Compugraphics International Ltd v Nikolic 2011: industrial building with a ventilation system and some of the pipes were on the outside of the building and stretched into the neighbours airspace. It was held this was a permissible servitude.
Can you add to the list of servitudes?
⁃ In principle yes, but in practice very difficult. It seems that a new servitude must either be:
⁃ (a) closely analogous with some existing servitude, or
⁃ (b) required by technological/social/economic change and in conformity with existing criteria for servitudes.
- NB the reason why courts have been unwilling to recognise an unrestricted list is to protect purchasers from unregistered rights. However note that this is not an issue for servitude created expressly since 28 November 2004 because these have to be registered on both the title of the benefited and the burdened property. Expressly created servitudes no longer have to be on the recognised list.
But the fixed list no longer applies to servitudes created by writing and registration - so servitudes created expressly since 28 November 2004 are not bound by the list[ This means that you can now create a servitude of any type as long as it satisfies the general requirements.] (by virtue of s 76 TCA 2003). The reason is that some servitudes must be on the Register on both the benefitted property and the burdened property’s title, so there is no publicity issue. Before the 28 Nov 2004 you could create a servitude expressly and it did not have to go on the Register.
Mendelssohn v The Wee Pub Co Ltd 1991
Question of whether you could have a servitude of hanging a sign on a neighbour’s property. Held that since the Roman’s didn’t recognise this servitude, it was not a permissible servitude under Scots law. (However, AS is doubtful this case stands following Compugraphics)
Neill v Scobbie 1993
Alleged servitude of electricity was not allowed, however this has been overruled by s 77(1).
Romano v Standard Commercial Property Securities Ltd 2008
Restaurant in Glasgow. Front of the restaurant was painted further up the tenement. Held that there was no servitude of ‘shop front’ (so this case is similar to Mendelssohn but doesn’t fit very well with Compugraphics)
How can you create servitudes?
There are several ways to create servitudes:
⁃ 1) Expressly by the owner of the burdened property.
⁃ 2) Implied grant
- 3) Implied reservation
- 4) Positive Prescription
- 5) Acquiescence
How can you create a servitude expressly?
- you must use writing (RW(S)A 1995 s 1(2)(b)) since a servitude is a real right in land.
- you must identify and describe both the burdened and the benefitted property
- there is no need for a detailed description of known servitudes since each type of known servitude has well known characteristics (e.g. a servitude of way along the path shown on the plan). However for new servitudes (e.g. not on the fixed list) you may need to be more detailed.
- it is not essential to use the word ‘servitude’ but it is desirable; however it must be made clear that you are binding successors etc rather than simply creating a contractual right so it would be foolish not to use the word servitude.
- you must register the servitude against both the benefited and burdened property (dual registration) (TCA 2003 s 75).
⁃ NB registration is not required for pipeline servitudes (s 77 TCA 2003)
⁃ NB under the old law[ But this is no longer the law as a result of s 75 TCA 2003.], dual registration was not required (it could (1) be dual registered, (2) register against benefitted property, (3) register against burdened property, (4) simply possess the servitude.