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.
What was reinforced in Romano v Standard Commercial Property Securities Ltd 2008 ?
where the signage servitude was again denied as a part of Scots law.
What are the main features of the ‘fixed list’?
- Access
- Parking Vehicles
- Service Media
- Support
- projection
- Eavesdrop
- Pasturage
- Extracting material
- Bleaching and drying clothes
What are the four rights of access?
1) Iter (pedestrian)
2) Actus (right to lead cattle)
3) via (vehicular)
the greater the rights includes the lesser
What case realised the servitude of parking?
Moncrieff v Jamieson 2008
What happened in Moncrieff v Jamieson?
Case determined that a person who owned land at the bottom of a cliff could park their car on land owned by someone else on the top of the cliff and then proceed to their property on foot
What did Johnson, Thomas and Thomas v Smith
(2016) establish?
Here parking unlimited as to the number and type of vehicles.
What rights are given under service media?
(a) watergang - right to lead water over the burdened property
(b) aquaehaustus - right to take water from river/loch on burdened property
(c) Sinks/drainage/outfall - can use burdened property for drainage purposes, beyond the inherent landownership right of naturally running water
What rights are given under support?
(a) oneris ferendi - right to receive support from adjacent building
(b) tigni immittendi - the right to insert a beam into a neighbouring building
What rights are given under eavesdrop?
Allows water to run off the roof of benefited property on to burdened property.
