Servitudes

Question 1

What is a servitude?

Answer 1

A burden on land or houses…whereby the owner of the burdened tenement…must submit to certain uses to be exercised by the owner of the benefited tenement (Bell).

Question 2

What terminology is used when describing servitude properties?

Answer 2

Modern terminology: benefited property and burdened property.

Question 3

What are the five recognised categories servitudes?

Answer 3

1. Access (which can be restricted to pedestrian use, or may extend to vehicles and livestock)
2. Pipes (water - supply or disposal - but now any kind of pipe or cable (Title Conditions (Scotland) Act 2003, s. 77)
3. Extraction of materials (for fuel or building)
4. Support of buildings
5. Pasturage

Question 4

Is the list of servitudes fixed?

Answer 4

No.

It used to be said that there was a “fixed list” of servitudes, but:
Title Conditions (Scotland) Act 2003, s76 - If created in writing and enters the land register, then it does not need to be a servitude recognised previously.

Question 5

What are the essential characteristics of servitudes?

Answer 5

1. Cannot impose positive obligations on burdened proprietor (Allan v MacLachlan)
2. Benefit must be praedial rather than personal benefit (Harvey v Lindsay)
3. Must not be repugnant with ownership. This means it cannot be so extensive that it removes privilege of ownership from burdened proprietor (Title Conditions (Scotland) Act 2003, s. 76(2))
4. Runs with the land, without any form of transmission (Braid Hills Hotel Co Ltd v Manuels)

Question 6

Give the facts and ratio of Allan v MacLachlan.

Answer 6

Argument made that where there was a servitude, the burdened property must maintain the land so that the benefited proprietor can make use of the servitude.

Held: No; all the burdened proprietor must do is not interfere with benefited proprietors servitude.

Question 7

Give the facts and ratio of Harvey v Lindsay.

Answer 7

Addresses creation of servitude rights related to recreation.

Held: Not a servitude as it does not relate to the land. You must be benefiting, not personally, but in your capacity of owner of the benefited property.

Question 8

Give the facts and ratio of Braid Hills Hotel Co Ltd v Manuels.

Answer 8

Servitude was not mentioned in disposition but new benefitted proprietor was entitled to benefit from it as it runs with land not individual owners.

Question 9

What is exercising the rights of a servitude known as?

Answer 9

Civiliter, meaning you must exercise the rights in a polite and considerable manner with the least impact to the burdened proprietor as possible.

Question 10

What are the rules when considering proposed alterations to servitudes?

Answer 10

1. Rights must be exercised for benefit of benefited property
   • Irvine knitters Ltd v North Ayrshire Co-operative Society Ltd
   • McTaggart v McDouall
2. Effect of division of benefited property
   • Keith v Texaco Ltd
   • Alba Homes Ltd v Duell

Question 11

Give the facts and ratio of Irvine knitters Ltd v North Ayrshire Co-operative Society Ltd.

Answer 11

Shop had servitude right of access through alley to access the rear of the shop. Subsequently, owner of benefitted shop buy properties on either side burdened proprietor but burdened proprietor argued that the new shop didn’t have servitude, only the original shop.

Held: Correct argument put forward. It was not for a route of access to additional properties and servitude didn’t extend to new properties.

Question 12

Give the facts and ratio of McTaggart v McDouall.

Answer 12

Servitude right to take seaweed from neighbours beach. If you take that to fertilise your land that is acceptable, however, if you take them to materially benefit in an industrial context that is not okay as it no longer connects to land.

Question 13

Give the facts and ratio of Keith v Texaco Ltd.

Answer 13

Servitude right of access benefitting a house whose owner sold it to developers who intended to build 20 homes on the plot. Burdened proprietor rejected the constructors and 20 new homes should not be allowed access.

Held: That it would be a material increase in use and was not permitted. Servitude did not extend to 20 new owners and constructors.

Question 14

Give the facts and ratio of Alba Homes Ltd v Duell.

Answer 14

Servitude right of access benefitting a house whose owner divided it to build 2 homes on the plot. Burdened proprietor rejected the constructors and the new homes should not be allowed access.

Held: That it would not necessarily be a material increase in use and so servitude would extend to new owners. Impact must be proven.

Question 15

How may a servitude be created?

Answer 15

• Express creation in writing
• Implied creation
• Positive prescription
• Acquiescence

Question 16

What two criteria must ancillary rights meet?

Ancillary - Subordinate or subservient

Answer 16

Moncrieff v Jamieson - Car parking case. Burdened property argued it was an access right, not the right to park. HoL held it fell under ancillary rights.

Ancillary rights must meet two following criteria;

1. Must be reasonably necessary for the reasonable enjoyment
2. Reasonably necessary as at the time the servitude was created

Question 17

Ancillary rights to support the exercising of a servitude may be created expressly or by implication.

True or False?

Answer 17

True.

Implied:
Moncrieff v Jamieson - Car parking case. Burdened property argued it was an access right, not the right to park. HoL held it fell under ancillary rights.

Express:
Macallan v Arbuckle - Deed creating servitude was specific. Benefitted property argued that they had the right to drive onto verges of single track road. No, due to specific deed.

Question 18

What does legislation say about the written provisions of a servitude?

Answer 18

Title Conditions (Scotland) Act 2003, s. 75 - Registration of servitude must be against both properties.

Land Registration etc (Scotland) Act 2012, s. 90 - Special provisions on servitudes created a non domino

Question 19

Discuss implied grants of severance of property.

Answer 19

Ewart v Cochrane - Involved area of land being sold off.

“when two properties are possessed by the same owner, and there has been a severance made of part from the other, anything which was used, and was necessary for the comfortable enjoyment of that part of the property which is granted, shall be considered to follow from the grant”.

Question 20

What are the requirements for a servitude to be created by implication?

Answer 20

• Area of land must be convade from a bigger area - the land is being sold off.
• There was an existing use before it was sold off.
• Must be reasonably necessary.

The law won’t imply a servitude simply because its more convenient, it must be necessary.

Question 21

How is a servitude created by positive prescription?

Answer 21

Prescription and Limitation (Scotland) Act 1973, s. 3(1) & (2) - Servitude must have been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption.

Question 22

What case law evidences s3 of the Prescription and Limitation (Scotland) Act 1973?

Positive prescription

Answer 22

Burt v Barclay - A fence was placed on land considered to have a servitude. The fence was then destroyed.

Held: The twenty years had not passed and so a servitude was not created, however, if the fence was destructed immediately and decisively, on a single occassion, then prescription will not be interrupted.

Question 23

State the four factors affecting servitudes.

Answer 23

1. Possession must be “as of right” and not attributable to consent or tolerance of the burdened proprietor.
2. The parties’ intentions in this regard are judged objectively
3. Implementing a sign would prevent prescription running.
4. The rule tantum possessum, quantum praescriptum: the right acquired is measured by the possession that has been exercised during the prescriptive period

2. (Aberdeen City Council v Wanchoo - Council argued that they didn’t object because they didn’t mind. Argument rejected as they didn’t do anything to show they were given permission.)
3. (Kerr v Brown 1939 - Use of a pipe for prescriptive period of waste water. Court held that didn’t extend to disposal of use of sewage; it was restricted to water waste only.)

Question 24

What is the leading case for servitudes created by acquiescence?

Answer 24

Cowan v Lord Kinnaird - Two requirements:

1. Someone incurring great expense or doing something that cannot be manifestly undone.
2. Done under the eye of the person with the ability to stop it.

This alone does not create a servitude as in principle it only binds the individual who acquiesced.

Question 25

What is acquiescence?

Answer 25

Where use is being made of neighbouring land, the landowner’s conduct may be such that he or she is barred by acquiescence (reluctant acceptance) from objecting.

Question 26

How are servitudes by acquiescence affected by land sales and succession?

Answer 26

They are not binding on successors without more than acquiescence.

In the case of sale, something must alert the owner before they buy for it to carry over.

Macgregor v Balfour - Claimed acquiescence was to pipe that the new owner was unaware of. New owner not bound by previous acquiescence.

Question 27

How are servitudes by created by writing restricted or extinguished?

Answer 27

Express writing

Question 28

How are servitudes by created by positive prescription restricted or extinguished?

Answer 28

Negative prescription (20 years non-use).

Prescription and Limitation (Scotland) Act 1973, s8 - A continuous period of twenty years unexercised or unenforced, and without any relevant claim in relation to it having been made, then as from the expiration of that period the right shall be extinguished.

Question 29

How are servitudes by created by Acquiescence restricted or extinguished?

Answer 29

Millar v Christie - Right of way over an area of ground. Owner of ground built onto benefitted proprietors area. Court held area of servitude built on disappears but the rest remains.

Question 30

How are servitudes restricted or extinguished when confusio occurs?

Answer 30

Union Bank of Scotland Ltd v Daily Record (Glasgow) Ltd - If the benefitted proprietor and burdened proprietor become one, servitude is extinguished. It does’t exist again automatically if re-split.

Question 31

Name two additional ways servitudes may be restricted or extinguished.

Answer 31

• Destruction of benefited property.
• Compulsory purchase.

Question 32

Written provisions are interpreted according to circumstances at time of grant.

True or False?

Answer 32

True.

Additionally, ancillary rights fall under written provisions.