Servitudes Flashcards
Who does the servitude belong to?
The servitude “runs with the land” and attaches to the benefitted property,
How far can servitudes go
Servitudes are limited rights and should not interfere too much with the owners right of ownership
However courts seem to be going further following Moncrieff v Jamieson
Conditions for servitude
1) attached to land
2) must be nearby properties, hence “praedial”. See Patrick v Napier
3) can’t be too onerous but courts will now go quite far, see Moncrieff v Jamieson
4) must be known to the law (Neil v Scobbie)
How can servitudes be created
1) by express grant. Note that as it’s a real right in land, formal writing is needed (ROW(S)A 1995 s1 (2)b). The deed creating the servitude must be registered against the title of both properties.
2) express reservation- you can sell land and reserve a servitude in the conveyance
3) implied grant but only if necessary for “comfortable and reasonable enjoyment of the property” Cochrane v Ewart
4) implied reservation using same test as implied grant. McEwans Exrs v Arnot (note that Murray v Medley held it had to be “utter necessity” but McEwans seems to have overturned this)
5) positive prescription of 20 years open, peaceable use without judicial interruption- but can only be entered into land register where a declarator has been obtained confirming the right
What obligations are on the proprietor of the benefitted property
1) to exercise it civiliter (Soriani v Cluckie)
2) to use it for the benefit of the benefitted property only and not for the benefit of any other property they own (Irvine Knitters Ltd v Co-op Society Ltd)
3) not to unwarrantably increase the burden in the burdened property (i.e. Kerr v Brown, water pipes doesn’t include sewage)
What are the rights and obligations of the burdened proprietor
They have the right to continue to enjoy and make use of the burdened property provided it doesn’t interfere with the servitude. They can also enforce any of the obligations on the benefitted proprietor.
They are obliged to respect the servitude and not interfere with its exercise (Drury v McGarvie) but are not obliged to carry out repairs to an access route (Rodgers v Harvie)
How are servitudes extinguished
1) through consent with a deed of discharge which is registered against the title of the burdened property, formal writing is required see ROW(S)A 1995 s1(2)b
2) through acquiescence if the benefitted proprietor stands by and lets burdened proprietor carry out works which will block their access (Millar v Christie)
3) through negative prescription if it hasn’t been exercised for 20 years UNLESS it’s a right of access to landlocked land as that isn’t a servitude but an absolute right
4) through confusion if the properties come into the same ownership as you can’t hold servitudes in land you own
Distinguish public rights of way from servitudes
Public rights of way have no benefitted property and are for access only
What is a servitude
A real right that allows a landowner to enter or make limited use of neighbouring land
A servitude can only be a positive servitude, negative servitudes don’t exist
Which servitudes are known to the law?
- Right of way
- Aqueduct
- Aquahaustus
- Sinks (Drainage/ outfall)
- Pasturage
- Fuel, peat and divot
- Building materials
- Bleaching and drying clothes
- Car parking
- Projection
Which case dealt with car parking
Moncrieff v Jamieson
Which case dealt with projection? I
It was a pipe
Compugraphics v Nikolic
Praedial case
Hill of Rubislaw v Rubislaw
Held that condition was praedial as protected the rental value of adjacent properties- this is praedial as it’s independent of the identity of the particular owner or landlords.
Considered the purpose built nature (as future owners therefore likely to use office blocks for same purpose) and proximity of the developments.
