servitudes Flashcards
define servitude
s.122 2003 title conditions act … limited use of NEIGHBOURGHRS land, THE NEED FOR NEIGHBOUR to control anti social behaviour.or for Mainraining land used in common
two properties of servitudes require
I)neighbouring (means contiguous/ adjoining) ii)in separate ownership these are the benefit property and the burdened property
benefited prop?
land that can impose conditons
burdened prop
land that condions are imposed.
s.79 2003 title condtions act
prohibits the negative servitude now all formed as real burdens
what must a servitude have to qualfy
consist of a right to enter/ make use of the other property.
confer a praeledial benefit (servitudes should not have a personal benefit has to be a objective benefit for the needs of the land.
not repugnant with ownership s.76(2) TCA
except in the case of a servitude created by writing and reg on or after 28th nov be right known to the law as a servitude tca 76(1)
nation wide building society v walter d allen
not repugnant creates a right of use but a limited one use which is too invasive is not permitted. a piece of land for 2 acrs that was big enough for 6 was a purported servitude l. smith REPUGNANT with ownership might be different now due to JAMIESON
Patrick v napier
fishing trout 0.5 mile from benefitted property court state praedial benefit not satisfied fishing rights not praelidial
regency villas titles ltd v diamond resorts Europe ltd
English law time shares 2nd stage had (easement) servitude over 1st stage to give 2nd stage use of squash courts et al HELD was valid easement not personal advantage of development
Moncrieff v jamieson
car parking= not too invasive it can be a servitude s.76(2)
parking as an ancillary to servitude of access
s.76(2) TCA 2003
cannot have a servitude that is too invasive
passage way/ pedestrian railway/ cattle/via (vehicular
parking.
Johnson, Thomas &Thomas v smith
establishes carparking = free stanig servitude the carvans owned by the show man parked on the land that they didn’t own this happened 20+ years PRESCRIPTION of a free standing servitude of parking.
s.77 TCA 2003
SERVICE MEDIA
Aquaduct right to lead water through burdered propert pipe/ cable.
aquehaustus right to take water from a stream
sinks right to send water other than in its natural state ie sewage.
oneris ferendi
right to be supported by adjacent building subject to stat. right TA 2004 S.8
tigni immittendi
right to insert beam into neighbouring building
stillicide
right to allow water to fall from the eaves
pastuarage
right to pasture animals
extracting animals
fuel( right to take peat restricted to needs of prop)/ building materials (for purposes of building on benefitted prop)
bleaching and drying
…
compugraphics international ltd v nikolic
recognised overhang projection as a servitude
s.75 2003 tca
you can add to servitude list. but has to be closely anoalogous to existing servitude OR recquired by technological/ social/ economic change and in conformity with the repugnant / praelidial rules.
medelson v wee pub
no sign hanging can be a recognised servitude
neill v scobbie
old law s.77 refused to except the electricity cables being a recognised servitude.
romanno v standard comercial property securities ltd
shop front in Glasgow separate floors separate people no servitude of shop front. 2003 tca s.75 tca if creating a new servitude has to follow praldial and regugnant conditons
creation of servitude
either expressly OR impliedly OR by prescription OR by acquiescence?
s.1(2)b 1995 act
formal writing expressly must id both burdened and benefitted property cannot be orally need a deed wil go on reg acess express development in creating new servitude has to be more detailed.
axis west devolpment ltd v chatwell land investments ltd
no need for detailed description of content because each type of servitude has well known characteristics But position might be different for servitudes not on the foxed list a servitude right of paedestrian and vehicular access over the road coloured yellow on the said plan
moss bros group plc v Scottish mutual assurance
not essential the word servitude BUT desirable. reference to egress in evnt of finre HELD burden of fire = serivitude bind successors but must use servitude otherwise succesors not bound
used to be reg of servitude benefitted both or just an act NOW has to be DUAL reg
s.753b TCA 2003
but be dual reg against both properties
process of dual reg
deed of servitude the servitude is granted by the owner of the burderned prop.
in conveyance a servitude is either granted (to the grantee) or reserved (to the granter) cross servitudes are common
conveyancing granted
benefited property is conveyed extra rights granted by burdened prop.
conveyancing reserved
extra rights reserved by burdened prop.
is there a creation of servitude by implication?
implied term of conveyance only. so NO conveyance NO servitude by implication.
Might have an implied grant or reservation by implication
Cochrane v ewart
grant implied if servitude is necessary for the REASONABLE enjoyment of the property which it is granted.
the meaning of necessary:
NOT that the property would have no value without easement.
BUT that it is necessary for the CONVIENT and COMFORTABLE ENJOYMENT of the property as it existed BEFORE the grant
Gows trs v Mealls
originally both properties owned by 1 owner. when sold to 2nd owner the access through the property was blocked. it had not been impliedly granted adequate access out the front of the property. an example of a QUASI SERVITUDE at the time of severance NO IMPLIED SERVITUDE.
ASA INTERNATIONAL LTD V KASHMIRI PROOPERITES
QUASI SERVITUDE at the time of severance. part of the fron thad been conveyed. good access from the back it was not necessary for access from the back. as it was not necessary for the convient and comfortable enjoyment of the property= NO IMPLIED SERVITUDE
fergusson v campbell
acquduct reserved infavour of the water mill because the mill could not function without water. burdened property conveyed out of utter necessity. reservations implied will ONLY be grated in cases of UTTER NECESSITY
MURRAY V MEDLEY
DISAGREED PIPING NOT UTTER NECESSITY GRANTER MUST NOT DEROGATE FROM GRANT BY IMPLIEDLY RESRVING RIGHTS
MCEWANS EXRS V ARNOT
servitude in terms of drainage utter necessity not right- lower reasonable necessity test.- IMPLIEDLY RESERVING RIGHTS
BOWERS V KENNADY
IMPLIED SERVITUDE RIGHT OF ACCESS VS RIGHT OF ACESS TO LANDLOCKED LAND. Right to access land locked as an inherent part of ownership of that property. implied servitude LOST by percription AN INHERENT RIGHT OF ACCESS
1973 (3) (1) AND (2)
POSITIVE PRESCRIPTION TO CREATE A SERVITUDE. possession must be ADVERSE OF RIGHT and NOT by TOLERENCE. 20years no deed sdeversly to do it as if I had a right to do it. cant just be tolerance.
20 years has to be OPEN AND PEACEBLE AND BASED ON DEED
Aberdeen city v wanchoo
positive prescription servitude. more you use it the more likely it will be adverse.
robson v chalmers
servitude by acquiescence? (inconsistent behaviour). damn constructed to allow water to flow burdened property debared from it being deconstructed.
Moncrieff v jamieson
servitude by acquiescence? (inconsistent behaviour). cannot get servitude. cannot object to servitude later. if the burdened property allows the installation at the time. but if installation was obvious = encroachment
how does burdened prop find out about servitudes
check land reg/ check sasines.
not always reg
sometimes servitudes if created pre 2004 only reg against benefitted prop.
check state of possession
sue for warrendice= walsh v russel (WASN’T MATERIAL, SUE WARRENDICE ONLY IF MATERIAL TO CONTRACTAND DIDNT KNOW)
ANCILLARY RIGHTS
may be implied if the right is necessary for the convenient and confortable enjoyment of the prop. OR if it was in the contemplation of the parties at the time.
- the right to erect and leave things on burdened prop.
- the right to repair/ improve burdened prop.
moncrief v jamieson
reasonably for the enjoyment of property within the reasonable contemplation
drury v mcgarvie
BURDENED OWNER CAN USE THE PROPERTY BUT MUST RESPECT THE SERVITUDE ANCILLARY RIGHTS.out in the country right of access over from land farmer had animals straying onto the rd farmer erected gates owner couldn’t open gates HELD gate = reasonable TEST= reasonable person could open gates the owners can adapt @ their own expense.
IRVINE KNITTERS LTD V NORTH AYRSHIRE COOP SOCIETY LTD
ONLT BENEFITTED PROPERTY MAY TAKE BENFIT. NOT NEIGHBOURING LAND WHICH THE BENEFITTED OWNER HAPPENS TO OWN.
GRANT V CAMERON
AUTHORISED USERS OF BENEFITTED PROPERTY MAY ALSO USE SEERVITUDE. public can use the route to get to shops
if benefited property is divided then which ben. property can take benefit
BENEFITTED PROPERTY MAY TAKE BENEFIT ONLY. if the distance from the burdened prop lacks praedial interest then both parts of divided ben. property = EXERCISE SERVITUDE.
dunlea v cashwell
NO INCREASE IN BURDEN ON BURDENED PROPERTY. baseline for increase extent of servitude at time when it was first created so stipulate it on the deed. a house servitude only residenstail vehicle servitude of parking. NO COMMERCIAL VEHICLES HELD builders not residential access right in order to maintain traffic
Carstairs v spence
NO INCREASE IN BURDEN ON BURDENED PROPERTY. baseline for increase extent of servitude at time when it was first created. NO DEED OR DEED does not stipulate EXTENT. servitude infavour of market garden the sight that developed houses. owners tried to stop them it was causing pollution end servitude. HELD using benefited property does not mean there is an increase of burden vol of traffic not much different to original purpose.
benefit does not mean unlawful burden walking security does not mean driving
kerr v brown
in passage servitude a change in the type of the thing passing is an increase in the burden… also demonstrates tantum praescriptum quantum possek
but no objection if new thing is modern version of original thing
keith v Texaco
whether increased use is an increase in the burden depends on the scale of the increase in use. benefitted property wanted to turn the filed into housing estate servitude explicity states BURDEN WAS AGAINST ANY BUILDING
alba homes ltd v duell
whether increased use is an increase in the burden depends on the scale of the increase in use. propose a 2nd house could use servitude.
when would there be an increase in burden on burdened property?
20 years of increased burdened leads to servitude by prescription
how can servitudes be extinguished
by agreement negative prescription by breach by confusion by compulsory purchase by LT
extinction of servitude by agreement
discharge writing 1995 act s1(2)(a)(I) reg TCA 2003 s78
extinction of servitude by non exercise negative prescription
LANDLOCKED LAND = IMPRESCRIPTABLE RIGHT! 20 years 1973 s.8
bowes v kennady inherent right of access.
extinction of servitude by breach: acquiescence
servitude extinguished if you allow neighbour to build access across it- acquiensance can partially reduce servitude
extinction of servitude by confusion
benefitted and burdened property come into same ownership. compare tca 2003 s19 real burdens.
cant be at both ends of a contract cant contract with yourself the ordinary rule = extinction. if fully intend to be together then= extinction BUT if intend to be together to then again split servitude wont be extinguished! REAL BURDEN= suspended under 2003 s19.
where as could get servitude back by implication.
extinction of servitude by lands tribunal
as a title condition tca 2003 part 9 to extinguish/ verify it
wayleaves def
is a pipeline/ cable servitude without a benefitted property valid in common law= NO without benefitted prop.
ELECTRICITY ACT 1984 SCH4 PARAS 6&7 for one of the many stat provisions
