Head 17: Servitudes

Question 1

s 122 Title Conditions (S) Act 2003

Answer 1

1. 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.]
2. Real burdens (b)
   ⁃ A negative or positive obligation affecting land (e.g. an obligation to maintain a wall.)
3. Conditions in long leases (d) (registrable lease over 20 years).
   ⁃ These are conditions in long leases, but doesn’t include the rent.

Question 2

Can title be varied or extinguished? Why would they need to be?

Answer 2

Yes. Due to:

1. The need to make some limited use of one’s neighbour’s land (Servitude)
2. The need to control his anti-social activities, (Real Burden)
3. The need for a mechanism for maintaining property owned or used in common.

Question 3

What does servitudes require?

Answer 3

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. ]’.)

Question 4

Do servitudes end when the burdened property is sold?

Answer 4

No - Servitudes ‘run with the land’. The rights are automatically transferred when they sell their land. This is because servitude is a real right.

Question 5

Do the properties have to be adjacent?

Answer 5

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.

Question 6

Can the burdened property be anything else apart from incorporeal heritable property?

Answer 6

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.

Question 7

What are the four key rules to qualify as a servitude?

Answer 7

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).)

Question 8

Can servitudes be negative?

Answer 8

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).

Question 9

Patrick v Napier (1867)

Answer 9

(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. ])

Question 10

Harper v Lindsay (1853)

Answer 10

held that a right of skating or curling on a loch during appropriate cold weather cannot be a servitude.

Question 11

Is there a fixed list of servitudes?

Answer 11

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)

Question 12

What might the fixed list of servitudes look like?

Answer 12

(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.

Question 13

Can you add to the list of servitudes?

Answer 13

⁃ 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.

Question 14

Mendelssohn v The Wee Pub Co Ltd 1991

Answer 14

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)

Question 15

Neill v Scobbie 1993

Answer 15

Alleged servitude of electricity was not allowed, however this has been overruled by s 77(1).

Question 16

Romano v Standard Commercial Property Securities Ltd 2008

Answer 16

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)

Question 17

How can you create servitudes?

Answer 17

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

Question 18

How can you create a servitude expressly?

Answer 18

1. you must use writing (RW(S)A 1995 s 1(2)(b)) since a servitude is a real right in land.
2. you must identify and describe both the burdened and the benefitted property
3. 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.
4. 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.
5. 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.

Question 19

Moss Bros v Scottish Mutual Assurance 2001

Answer 19

⁃ There was a right of access down a fire escape however the word servitude had not been used. Nevertheless the court held on the facts that this was a servitude.
⁃ NB for real burdens you must use the word real burden or equivalent

Question 20

What deeds are used to create an express servitude?

Answer 20

in theory you could create a servitude in any deed but in practice there are two types which would be used:
⁃ 1) deed of servitude (stand-alone deed)
⁃ In a deed of servitude, a servitude is granted (i.e. to a grantee) by the owner of the burdened property)
⁃ 2) conveyance (typically a disposition)
⁃ In a conveyance, a servitude is either granted (i.e. to a grantee) or reserved (i.e. to a granter).
⁃ NB ‘cross servitudes’ are common i.e. the conveyance both grants and reserves the servitude.
- Here it is the benefit property which is being conveyed.

Question 21

Can you create a servitude by implication?

Answer 21

You cannot have an implied deed of servitude. You can only have a servitude arising impliedly in a conveyance. There is no such thing as an implied stand-alone deed of servitude.
⁃ In other words there must be a time in which both pieces of land are owned by the same person and then they are split.

The servitude may be created by implied grant or reservation.

Question 22

How can you create a servitude by implied grant?

Answer 22

For servitudes created by implied grant the test is whether the servitude is “necessary for the reasonable enjoyment of the property which is granted”

(*Cochrane v Ewart (1861)). In Cochrane the meaning of ‘necessary’ was held to be:
⁃ “When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement[ English law term for servitude.], but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant.”

⁃ Typically there is something called a ‘quasi-servitude’ in place at the time of severance. In other words, that part of the land which becomes benefitted is already using that part of the land as an access before the severance.

Question 23

*Gow’s Trs v Mealls (1875)

Answer 23

⁃ There was a piece of land owned by one party. There were buildings at the front and it was divided into two plots. Access to the back of plot A was often taken through B. There was, however alternative access to A. Plot A was sold off and the new owner continued to take access through plot B. The question was whether there was an implied right of servitude granted. A could only have acquired this servitude if it was implied into the disposition. It was held that there was no implied grant since the alternative access was perfectly good. Look up why this is relevant to ‘quasi servitude’

Question 24

*Cochrane v Ewart

Answer 24

A lanyard and a garden ere owned by the same individual. the lanyard drained into a cesspool int he grade. when the lanyard was sold separately, it was held that a servitude right of drainage had been impliedly granted in the conveyance. this demonstrates the point that in cases of implied grant a quasi servitude normally exists at the time the properties are separated. in other words, the right claimed was in effect exercised before the division.

Question 25

How are servitudes created by implied reservation?

Answer 25

Reservation is only implied in the event of utter necessity, for in general a granter must not derogate from his grant. It is the factual converse of implied grant. Here it is the burdened property that is conveyed.

NB there has been recent authority to suggest that the same test be applied to grant and to reservation (McEwan’s Exrs v Arnot 2004). Both Reid and Gretton agree that there should be no difference between the test for implied grant and implied reservation. The test is of “necessary for comfortable enjoyment”.

Question 26

Fergusson v Campbell 1913

Cf: Murray v Medley 1973

Answer 26

Fergusson v Campbell 1913
⁃ This concerned a mill-lade (a channel of water required to serve a mill). This was an alleged case of implied reservation of servitude a of aqueduct and it was held to be utterly necessary that the mill was served with water - it couldn’t function without a water supply.

Cf: Murray v Medley 1973
⁃ The sheriff held that a water supply to a house was not utterly necessary. [This decision would probably be decided differently today since it rests of an English case.]
- The rationale behind the strict test has been stated to be the principle that a granter must not derogate from the grant by impliedly reserving rights.

Question 27

Is there an inherent right to reach landlocked land?

Answer 27

there is an inherent right to reach landlocked land which cannot negatively prescribe. If the conveyance is silent, a servitude right of access will be impliedly granted over the retained land as this is reasonably necessary to let Roger obtain access.

Question 28

*Bowers v Kennedy 2000

Answer 28

Individual owned a piece of land and sold off a middle part (an enclave). They granted a servitude but the property in the middle wasn’t used for more than 20 years. As a result the servitude negatively prescribed (or at least it was argued that it had). This meant the owners couldn’t get from the road to the middle.
⁃ However, it was held that there was an inherent right to reach the property which does not negatively prescribe. (This is in schedule 3 of the 1973 Prescription and Limitation Act and is known as a res merae facultatis[ I.e. the right to reach landlocked land.].)

Question 29

How can servitudes be created by positive prescription?

Answer 29

Servitudes can be created by positive prescription under the 1973 Act s 3(1)[ This states you must have a deed + 20 years possession]+(2)[ This states you simply need 20 years of exercise.].
⁃ In practice s 3(1) isn’t used.

The requirements of s 3(2) are that there is 20 years open, peaceable, without judicial interruption exercise of the land (same as prescriptive acquisition of ownership).

⁃ The possession must be adverse - in other words it must not be with the permission or tolerance of the ‘burdened’ property but it must be as if you have the right to do so. (Aberdeen City Council v Wanchoo 2008)[ NB this is a little tricky so look up the book?].

• The possession will not be adverse if it is with the tolerance of the landowner. The correct rule is that a lack of tolerance can be inferred from a high volume of use of the servitude.
• The Keeper will only enter servitudes established by prescription in the Land Register where a declarator has been obtained confirmed the right.

Question 30

How can servitudes be created by acquiescence?

Answer 30

Mere acquiescence may confer a right of use of property or servitude (Bell). But this is doubtful.
Rather, where servitudes involve an encroachment such as laying pipes etc, a landowner who acquiesces in the work will be personally barred from objecting later. At least if significant expenditure has incurred. Where the encroachment is obvious, successors of the landowner may be bound too (MacGregor v Balfour (1899)).

Question 31

How does a purchaser of burderned property find out?

Answer 31

1) Check the Land Register / Register of Sasines
⁃ However, servitudes are not always registered since they can be created by prescription or implication and even if they are registered, servitudes created before 2004 may be registered only against the benefitted property.
- Servitudes created expressly since 28 November 2004 require to be registered on the titles of both properties. So a search the register will reveal them.
- NB a Keeper is not expected to insert information in a title sheet as to servitudes which benefit and burden the property under ss 6 and 9 LR(S)A 2012 unless she knows about the servitudes.

2) Check state of possession
⁃ I.e. go and check the actual property if someone is exercising a servitude.

3) Keep fingers crossed / sue the seller in warrandice
⁃ However, you can only claim if it is a material servitude and you didn’t know about it at the time of acquisition (Welsh v Russell (1894)).

Question 32

What are ancillary rights?

Answer 32

These are rights which are ancillary to the main right of servitude[ So in Moncrieff the right to park at the top of the cliff was held to be ancillary to the servitude which allowed them to drive along the road.].

These may be implied if (see Moncrieff v Jamieson 2008 - a right of parking was held to be ancillary to the right of access created under a deed.):

⁃ A) the right is necessary for the convenient and comfortable enjoyment of the servitude and

⁃ B) it was within the contemplation of the parties at the time the servitude was created

Question 33

What might these ancillary rights consist of?

Answer 33

1) The right to erect and leave things on the burdened property (e.g. pipes, a septic tank etc)

2) The right to repair/improve the burdened property
⁃ NB there is no obligation to repair on the burdened owner (though in appropriate cases one may be imposed as a real burden. But there can be an obligation to repair (or another obligation) imposed on the benefited owner as part of the servitude.

The burdened owner can use the property but must respect the servitude.

Question 34

Drury v McGarvie 1993

Answer 34

There was a route through farmland from a public road to a cottage. The farmer’s animals were straying onto the road so the farmer erected stock proof gates. Howver the owners of the cottage had difficulty opening the gates (they were elderly / disabled). It was held on the facts that putting up the gates was reasonable because it was for the purpose of keeping animals in and the criteria was whether the average person[ NB this case is from 1993 and it would quite possibly be decided differently as a result of discrimination legislation.] could open the gates without difficulty.

Question 35

*Irvine Knitters Ltd v North Ayrshire Cooperative 1978

Answer 35

Only the benefited property may take the benefit of the land.

⁃ The Irvine Coop was on two plots. There was a busy road at the front but there was a servitude right of access at the back to plot 1. The coop were taking the groceries via the servitude to plot 1 and to plot 2. The owners sought interdict and they won. It was held that ‘[T]hey [the benefited owners] may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non-dominant subjects.’

Question 36

Grant v Cameron (1991)

Answer 36

But authorised users of benefited property (e.g. tenants, friends) may also use the servitude.

⁃ The benefitted property was used as a shop and it was held that the public could use the servitude. NB AS thinks that this is a case which was decided on the facts (the servitude said something along the lines of being available for “all purposes”).

Question 37

What happens if a benefited property is divided?

Answer 37

In principle, both parts remain benefited. However, in some situations the new part may be so far away from the access route that it is too far away to satisfy the praedial test and thus may not benefit from the servitude.

Question 38

Can there be an increase of the burden on the burdened property?

Answer 38

The baseline for any increase is the extent of the servitude at the time it was first created and then work out whether the change of use or new use is still permissible.

a) There can be easy cases where the deed stipulates the extent of the servitude: e.g. where there is a servitude of ‘pedestrian access’, in which case you clearly cannot drive a car along the route.
Grant v Cameron
⁃ Servitude allowed use of the route ‘for all purposes’

b) However in practice it is often less easy, especially where there is no deed or the deed does not stipulate the extent of the servitude:
⁃ Nevertheless, some general[ However, as AS stresses, each case must be considered on its facts.] rules have developed to help in these situations:

1) Change in the use made of the benefitted property is not in itself an increase in the burden on the burdened property:
⁃ *Carstairs v Spence 1924
⁃ There was a servitude right of way created by prescription. At the time that it was established the benefitted property was a market garden. It then subsequently became a building site for houses. At this point the owner of the route sought to interdict this use - he objected to the benefitted proprietor carrying building materials along the access route. The court held that on the facts there was not an impermissible increase.

2) In passage servitudes (e.g. way, aqueduct) a change in the type of thing passing is an increase in the burden.
⁃ E.g. a servitude for pedestrian access cannot be used for vehicular access.
⁃ Kerr v Brown 1939
⁃ A servitude to carry waste water away from sinks was established by prescription. It was held that this was not capable of including sewage because sewage is a more significant type of thing passing than simply dirty water from sinks.
⁃ Kerr also demonstrates the rule: tantum praescriptum quantum possessum: this means that the amount of the prescription is measured by possession. In other words, you cannot have a servitude beyond what the prescription established. However, there is no objection if the new thing is simply a modern version of the original thing - thus a car can be used in the 21st century for a servitude originally for carriages.

3) Whether increased use is an increase in the burden depends on the scale of the increased use.
⁃ So if you have a general servitude of vehicular use and you rarely drive along it because you prefer to walk, this would not stop you getting two cars and starting to drive along it (nb this is subject to negative prescription).
⁃ The classic example is a field being turned into housing - can the servitude now be used by 20 families? In general the greater the increase in the use the less likely it can.

a. Keith v Texaco 1977
⁃ The benefitted proprietor wanted to turn a field into 20 houses. It was held this would amount to too great an increase in the burden. NB this case has a subtlety in it that the field itself was also subject to a real burden of prohibition against building. The servitude was conferred in the same deed that said no building. So it wasn’t purely about the fact that there were 20 houses, the fact that there was a building prohibition was also important.
b. Alba Homes v Duell 1993
⁃ A plot of land had one house on it and the owners proposed to build a second house. It was held that the servitude could be used to reach the second house (but again, the point was not argued in any detail in this case and it is only a sheriff court case.)

⁃ NB if you start doing something for 20 years without objection then you obtain a new servitude by positive prescription.

Question 39

How can servitudes be extinct?

Answer 39

A) By agreement (consensual)
B) By non-exercise: negative prescription
C) By breach: acquiescence
D) By confusion
E) By compulsory purchase
F) By the Lands Tribunal
G) By destruction where the benefitted building is destroyed with no intention of rebuilding.

Question 40

How are servitudes extinguished by agreement?

Answer 40

Servitudes can be extinguished by agreement of the benefitted and burdened proprietors. They will enter into a deed of discharge.
⁃ The benefitted proprietor will grant a deed discharging the servitude and because this is a deed about a servitude and because it is a real right in land, you need to use writing under the RW(S)A 1995 s 1(2)(a)(i).
⁃ If the servitude is on the title of the burdened property, the only way of extinguishing it is by a deed registered[ This registration is only against the burdened property] against that title under the TCA 2003 s 78 (by deed of discharge RW(S)A s1(2)(b)).

Question 41

How are servitudes extinguished by non-exercise: negative prescription?

Answer 41

Since servitudes are real rights in land they prescribe negatively after 20 years under s 8 of the 1973 Act.
However, remember *Bowers v Kennedy 2000 - there is an inherent right of a landowner to reach landlocked land (res merae facultatis) (see earlier).

Question 42

How are servitudes extinguished by breach: acquiescence?

Answer 42

This is an example of personal bar.

If the benefitted proprietor stands back and lets the burdened proprietor prevent the use of his servitude then he or she may be barred from objecting later on.

This will be most likely if the work involved substantial expenditure the value of which would be lost if the objection succeeded (Davidson v Thomson (1880)). In this situation the servitude is extinguished by acquiescence.

Also, if the burdened proprietor prevents the use by a certain extent, to which the benefitted proprietor does not object to, then they would be barred from objecting to this. The effect of this would be that the servitude is reduced.
⁃ In other words, e.g. if there is a servitude of access and the burdened proprietor partially builds across it and the benefitted proprietor doesn’t object then they would be barred from doing so and the servitude would be reduced in scope.

Question 43

How can servitudes be extinguished by confusion?

Answer 43

This is the idea that you cannot contract with yourself. So if the benefited and burdened property come into the same ownership, then the servitude is extinguished (under the common law - there is no statutory rule).

However if you then subsequently separate the two properties then there may be a new servitude by implication (so in effect it reappears but strictly it is a new servitude).

NB the rule for real burdens is statutory now under s 19 TCA 2003 - the rule is that the real burden is suspended rather than extinguished.

Question 44

How can servitudes be extinguished by compulsory purchase?

Answer 44

Compulsory purchase of land extinguishes both real burdens and servitudes (ss 106 TCA 2003).

If you acquire land voluntarily where you could have used compulsory purchase powers, there is a procedure whereby you can extinguish the servitudes and real burdens by giving notice to the holders, and unless the holders go to the Land Tribunal and persuade it to retain the servitudes/real burdens then they will be extinguished (s 107).

Question 45

How can servitudes be extinguished by the Lands Tribunal?

Answer 45

The Lands Tribunal is a special court which had jurisdiction over title conditions (including servitudes). IT means that the burdened proprietor may apply to the Lands Tribunal for the servitude to be varied or discharged. The rules are essentially the same as for real burdens.

Question 46

What are wayleaves?

Answer 46

A wayleave is a pipeline or cable ‘servitude’ (typically in favour of gas/electricity companies etc). There are often statutory powers for these (e.g. The Electricity Act 1989).

Question 47

Are wayleaves valid at common law?

Answer 47

In broad terms it depends whether there is a benefited property or not (e.g. a power station). If so then they can be brought within the law of servitudes. If there is no recognisable benefited property then they are not valid at common law (and thus only valid under the relevant statutory provisions).