Servitudes Flashcards
4 ways to cross someones land
1) public right of way
2) access rights under LR(S)A 2003
3) Contractual Agreement
4) Servitude
What is a servitude?
Subordinate real right that only applies to land, places obligations on landowners enforceable by their neighbours
Why servitude and not other option?
- Public right of access needs to be between two public places
- LR(S)A exclude private garden area
- contract only a personal right, not enforceable if either party moves or dies
Who gets what?
Owner gives up a bit of his rights and other person gain a right pertinent to their right of ownership of their own land
What must the two parties be?
Adjacent neighbours
Person receiving servitude is referred to as…?
Dominant or Benefitted property
Person issuing servitude is referred to as?
The servient/ burdened property
What must all servitudes be?
Praedial in nature (for benefit of the land or your enjoyment of the land)
Hill of Rubislaw 2014
Preventing use of land for business is praedial as increases value of the land
Servitudes cannot be repugnant with ownership
Cannot take away burdened owners basic rights of ownership.
Servitudes should also be positive in nature
Making use of someones lan not preventing use
Generally servitudes must be ‘known to the law’
Must come from the set list unless created after 28th of Nov 2004 then list doesn’t matter
Servitudes known to the law?
1) right of way
2) aqueduct
3) sinks (drainage/outfall)
4) support
5) eavesdrop (water running off roof onto others)
6) paturage
7) fuel, feel and divot
8) building materials
9) bleaching and drying clothes
New servitude ‘known to law’ in Moncrieff v Jamieson 2007
Right to park car found to exist as implied in right of access
Servitude of projection recognised in Compugraphics v Nikolic 2012
Compugraphics v Nikolic 2012
- maybe just right to lead pipes.
- adrift projected over onto neighbours land
What do compugraphics v nikolic 2012 and Moncrieff v Jamieson 20007 suggest?
Perhaps not closed list of known servitudes, new ones can be recongised at common law
What does s76 of the Title Conditions (s) Act 2003 say?
after 28 Nov 2004 don’t need to stick to fixed list.
- just needs to be praedial, positive and not repugnant with nature of ownership.
Servitudes created by express grant at any time:
Form of derivative acquisition
so needs contract, deed and registration
Where must it be registered?
Against title deeds of both properties in whichever register they’re in
Creation of servitudes: Express reservation
When owner of land splits off a bit to sell but in the deed retains a servitude for themselves.
When can express reservation occur?
Only at point of sale.
Where person originally owned all the land, can’t be in regards to land you didn’t own.
What sort of servitudes can you have under express reservation or express grant?
Any so long as they are positive, not repugnant with ownership and praedial in nature
Implied reservation?
Where you split off and sell bit of your land but servitude must exist for them to have reasonable enjoyment of land (e.g. no access to road)
What form of servitudes can be created through implied reservation?
Only those known to the law as not registered any where so know what you’re dealing with
Servitudes can also be created by postive prescription
PL(S)A 1973 s3
- 20 years
- peaceably without judicial interruption
- must be off fixed list (as not on register
How do you evidence eye have right of access?
Sidebottum v Green 2014
Exercising servitude?
Must not have unwarrantable interference in burden and must not increase in exercise
Means of extinction?
- Agreement
- acquiescence
- abandonment
- Negative prescription
- confusion
- application to Lands Tribunal
