Servitudes Flashcards
What are servitudes?
- Real right which allows people to enter land of another to undertake operations or use in some way
How can servitudes be created?
Expressly to by implication.
How are servitudes regulated?
- Mainly regulated by common law
- some provisions in the Title Conditions (S) Act 2003
What is the similarity between a servitude and a real burden?
need a benefited and a burdened property
What can owner of a benefited property do in regards to servitudes?
The owner of the benefited property is entitled to enforce the servitudes and the owner of the burdened property is obliged to accept.
EXAMPLE:
- James sells a plot of land to Nigel
- J grants N a servitude right of access along the retained land to Nigel’s plot.
- Right to enforce servitude attaches to Nigel’s land as a pertinent
Q. What would happen to the servitude if;
(a) James’ sold the burdened property
(b) Nigel sold the Benefited property
(a) If James sells the land the new owner would continue to be bound by the servitude, as it is a real right.
(b) The servitude acts as a pertinent, therefore it would automatically transfer to the new owner of the benefited property.
What is meant by ‘pertinent’?
- Things transferred to a new owner automatically
- no need for express of written provision
A servitude must be ‘praedial’.
What is meant by this?
- Servitude must burden the ‘burdened property’ for the benefit of the ‘benefited property’
- Not just for personal benefit of owner of benefited property
What happened in Patrick v Napier 1867?
No praedial benefit
- Court held that a right of a landowner to fish in a nearby river failed partiality test
- fishing not a praedial benefit of his land
- regarded as a personal benefit
What is meant by repugnant of ownership, in regard to servitudes?
- where servitudes create a right it must be limit
- use of right which is too invasive on burdened proprietors right of ownership not permitted
What happened in Nationwide Building Society v Walter D Allan 2004?
HELD - that a servitude which allowed 2 cars to park on a piece of land large enough for only 6 was repugnant of ownership.
What are servitudes restricted to?
- Those known to the law
- In reality a fixed list
What happened in Mendelssohn v The Wee Pub Co Ltd 1991?
Attempt to establish servitude of sign hanging failed as it was not recognised in Roman Law.
What happened in Neil v Scobbie 1993?
Court unwilling to extend list of servitude to run overhead cables
What happened in Compugraphics International Ltd v Nikolic [2009]?
- s77 of the Title Conditions (Scotland) Act 2003 which provides for a positive servitude of leading pipes over or under land
- no reason why the recognised servitudes of overhang and support might not be combined to allow ductwork to protrude into someone else’s land.
