Servitudes

Question 1

4 ways to cross someones land

Answer 1

1) public right of way
2) access rights under LR(S)A 2003
3) Contractual Agreement
4) Servitude

Question 2

What is a servitude?

Answer 2

Subordinate real right that only applies to land, places obligations on landowners enforceable by their neighbours

Question 3

Why servitude and not other option?

Answer 3

• 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

Question 4

Who gets what?

Answer 4

Owner gives up a bit of his rights and other person gain a right pertinent to their right of ownership of their own land

Question 5

What must the two parties be?

Answer 5

Adjacent neighbours

Question 6

Person receiving servitude is referred to as…?

Answer 6

Dominant or Benefitted property

Question 7

Person issuing servitude is referred to as?

Answer 7

The servient/ burdened property

Question 8

What must all servitudes be?

Answer 8

Praedial in nature (for benefit of the land or your enjoyment of the land)

Question 9

Hill of Rubislaw 2014

Answer 9

Preventing use of land for business is praedial as increases value of the land

Question 10

Servitudes cannot be repugnant with ownership

Answer 10

Cannot take away burdened owners basic rights of ownership.

Question 11

Servitudes should also be positive in nature

Answer 11

Making use of someones lan not preventing use

Question 12

Generally servitudes must be ‘known to the law’

Answer 12

Must come from the set list unless created after 28th of Nov 2004 then list doesn’t matter

Question 13

Servitudes known to the law?

Answer 13

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

Question 14

New servitude ‘known to law’ in Moncrieff v Jamieson 2007

Answer 14

Right to park car found to exist as implied in right of access

Question 15

Servitude of projection recognised in Compugraphics v Nikolic 2012

Answer 15

Compugraphics v Nikolic 2012

• maybe just right to lead pipes.
• adrift projected over onto neighbours land

Question 16

What do compugraphics v nikolic 2012 and Moncrieff v Jamieson 20007 suggest?

Answer 16

Perhaps not closed list of known servitudes, new ones can be recongised at common law

Question 17

What does s76 of the Title Conditions (s) Act 2003 say?

Answer 17

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.

Question 18

Servitudes created by express grant at any time:

Answer 18

Form of derivative acquisition

so needs contract, deed and registration

Question 19

Where must it be registered?

Answer 19

Against title deeds of both properties in whichever register they’re in

Question 20

Creation of servitudes: Express reservation

Answer 20

When owner of land splits off a bit to sell but in the deed retains a servitude for themselves.

Question 21

When can express reservation occur?

Answer 21

Only at point of sale.

Where person originally owned all the land, can’t be in regards to land you didn’t own.

Question 22

What sort of servitudes can you have under express reservation or express grant?

Answer 22

Any so long as they are positive, not repugnant with ownership and praedial in nature

Question 23

Implied reservation?

Answer 23

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)

Question 24

What form of servitudes can be created through implied reservation?

Answer 24

Only those known to the law as not registered any where so know what you’re dealing with

Question 25

Servitudes can also be created by postive prescription

PL(S)A 1973 s3

Answer 25

• 20 years
• peaceably without judicial interruption
• must be off fixed list (as not on register

Question 26

How do you evidence eye have right of access?

Answer 26

Sidebottum v Green 2014

Question 27

Exercising servitude?

Answer 27

Must not have unwarrantable interference in burden and must not increase in exercise

Question 28

Means of extinction?

Answer 28

• Agreement
• acquiescence
• abandonment
• Negative prescription
• confusion
• application to Lands Tribunal