Lecture 16 - Servitude - notes PDF

Preview

Summary

notes...

Description

Lecture 16: Servitudes HOW CAN SOMEONE GET FROM A TO B? If two people live next to each other and one person has to cross another’s land to get to the road, they need legal access for practicality.  



Public right of way? Couldn’t be this because public rights of way have to connect to public places. This would only be private land and public land. Access rights under Land Reform (S)A 2003? Maybe – probably not the best solution. Land that forms the curtilage of a building is excluded from the access rights regime. People need privacy to access rights exclude gardens. Also for non-motorised vehicles -bike would be ok but if she has a car this is not ok. Contractual arrangement? This is possible, but that is also not ideal because if ben sells the land, she has a personal contract, so she would have to agree with new neighbour. Also, if she wants to sell the land it would be hard with these conditions.

CONCEPT 

  

Legal entitlement for the owner of one plot of land to make use of neighbouring land for a particular purpose – it’s not a contract, it is like a piece of incorporeal property which anyone living on that piece of land can make use of. More than a contract Subordinate real right held in B’s ownership: part of “use” given to another Pertinent attaching to A’s ownership

BASICS        



They fall under common law (mainly institutional writers) Title conditions (S) Act 2003 Adjacent properties – you can only have a servitude in relation to a directly neighbouring piece of land. The person who has the write of use of the servitude is known as the dominant proprietor. Benefited land appears in some things but it is just the same thing. The bit of land subject to the servitude is the servient or burdened proprietor. Praedial in nature – they must provide a benefit to the land rather than just a benefit to a person. Hill of Rubislaw 2014 Cannot be repugnant with ownership – the servitude can’t go too far that it is interfering with the ownership rights. They must be positive – they have to be about the benefitted proprietor making certain use of the burdened land. i.e. you cant make one to prevent someone from making use of certain land. They have to be known to the law – there is a fixed list. They have to be known to the law unless it is one expressly created in writing post 28th November 2004.

KNOWN TO THE LAW – on the fixed list  

Right of way (access) – taking access over the other party’s land. It could be limited to pedestrian access or could include horses or vehicle access. Aqueduct (watergang) – the right for the benefitted property to lead water through the burdened property (this would mean leading pipes under the ground)

 

 

   

Aquaehaustus – right for the benefitted to take water from the burdened property. (for example if there is a stream) Sinks (drainage/outfall) – right for the benefitted property to direct drainage onto the burdened property (must be more than natural drainage – otherwise this would fall under common interest) Support – the benefitted property is entitled to get support from the burdened property (normally a beam or some sort of support) Eavesdrop (stillicide) – the right for the benefitted property to drain rain water onto the roof of the burdened property (historical – buildings aren’t build that close together anymore) Pasturage - right for the benefited property to allow animals to graze on the burdened property Fuel, feal and divot – right for the benefitted to take peat for fuel or turf for roofing Building materials – benefited can take materials frim burdened Bleaching and drying clothes – hanging your clothes out to dry on the burdened land.

There have recently been some new ones:  Car parking: Moncrieff v Jamieson (2007) – the two neighbouring properties were at different levels so the benefitted property was at sea level and then at the edge there was a small cliff and the burdened property was higher up (connected by stairs on cliff). The moncrieffs had a right of access from the main road but they couldn’t get a car down the cliff so the court decided they have a servitude.  Projection: Compugraphics v Nikolic (2012) – a building built right up to the absolute boundary line of their property. They had then installed a heating pipe to the outside of the building. That then projects into airspace which is not theirs. You can project your pipes in but the attachments accede.  S76 TC(S)A 2003 – you can create ones not on this list. So long as positive, paedial etc CREATION 

 

Express grant any time o Derivative acquisition o Contract (WRITTEN DUE TO THE FACT YOU ARE CREATING A RIGHT IN LAND), delivery of deed of servitude, registration against the benefitted and burdened property (dual registration requirement) Express reservation in split off o Missives, delivery of disposition, registration Implied grant or reservation in split off – if it is necessary and reasonable for the enjoyment of the property o ASA International v Kashmiri Properties (2016) - basically states the law in the second half. Law should be slow to recognise implied servitudes and especially with rights of access. If there is another access route that doesn’t involve land crossing – use this Positive prescription o o

PL(S)A 1973, s3 – if the benefitted prop. makes use of this servitude right for 20 years openly, peaceably, and without judicial interruption then it cannot be challenged 20 years adverse possession

ENFORCEMENT   

Civiliter – must be exercised reasonably No unwarrantable increase in the burden – this would be like if the servitude was for pedestrian access then you can’t start driving along it (don’t change the nature) No interference with exercise – the burdened is not to interfere with the exercise of the servitude. (for example don’t build a wall)

TERMINATION  

   

Agreement Acquiescence – burdened proprietor doing something to prvetn exercising the servitude (something which involves spending money) and the benefitted proprietor would let that happen Abandonment – the same as above but taking positive action to help Negative prescription: PL(S)A 1973, s8 (NB access) Confusion Application to the Lands Tribunal: TC(S)A, s90...