Semester 2 Property LAW Notes PDF

Preview

Summary

SEMESTER 2 PROPERTY LAW NOTESLecture 1 Tue 17 JanHead 17 SERVITUDESWhen looking at dates before 2004 ensure there are no new laws because of abolition of feudal tenure act 2004Title conditions deal with heritable property – land Specific definition in s122 of the act:TITLE CONDITIONS: SOME GENERAL P...

Description

SEMESTER 2 PROPERTY LAW NOTES Lecture 1 Tue 17 Jan Head 17 SERVITUDES When looking at dates before 2004 ensure there are no new laws because of abolition of feudal tenure act 2004 Title conditions deal with heritable property – land Specific definition in s122 of the act: TITLE CONDITIONS: SOME GENERAL POINTS Defined in Title Conditions (Scotland) Act 2003 s 122. Essentially   

Servitudes Real burdens Conditions in long leases

Affecting land or property that the lands tribunal has jurisdiction over.

Servitude – right of one landowner, to make limited use/take entry to a neighbouring landowners land. E.g. A through B to get to road. Real burden – positive or negative obligation affecting land; such as to build or not to trade, or to maintain a wall. Nuisance – can be used to control neighbour to limited extent [same as delict] Negative real burden – ban on trading in the area Positive real burden – the upkeep of a wall for example Two Properties Servitudes require two properties that are neighbouring and in separate ownership. They tend to be adjoining, but don’t have to be. If A owns B, he doesn’t need to have a servitude to use property B, obviously. Only needs a servitude if he doesn’t own property B. The property receiving the servitude (A) is the benefitted property and B is the burdened property (in older textbooks this is referred to as dominant tenement and the servient tenement). Obligation attaches to the burdened property and the right attaches to the benefitted. Servitudes ‘run with the land’. Successor is bound for both properties. Content In order to qualify as a servitude, a right must – (a) consist of a right to enter/make use of the property of another (the burdened property); (b) confer praedial benefit, ie benefit on the property belonging to the holder of the right (the benefited property); (c) not be ‘repugnant with ownership’ (TCA s 76(2)) [mustn’t be in distaste]; and

(d) except in the case of a servitude created by writing and registration on or after 28 November 2004, be a right known to the law as a servitude (TCA 2003 s 76(1)). a) Prior to 2004, there were negative servitudes, specifically about building. Problem with these is that they overlap with real burdens. TCA 2003 banned future creation of negative servitudes. Negative servitudes were converted into real burdens. There are no longer any negative servitudes. If you want to, for example, ban building you use a real burden. All servitudes are now positive servitudes, be careful with this though as they don’t impose positive obligations, they allow use. b) Praedial is to do with land rather than personal, which is to do with people. Servitude must benefit land not people. It is a benefit to land A that it can be accessed via land B. Cannot have a servitude that is to the pure benefit to people rather than land. Patrick v Napier (1867) 5 M 683 – fishing is not praedial enough, too much to do with people rather than land. c) Moncrieff v Jamieson 2008 SC (HL) 1: HoL did not seem too concerned with car parking area being used by another not allowing person to use, as they can still go past on foot. Can’t have a servitude that amounts to a lease. d) Servitudes do not necessarily have to be registered. You can create a servitude by 20 years of use and you do not need registration. Implied servitudes exist and don’t appear on the Register. The concern of the court is that someone buying land should be able to see all the rights burdened onto this land, much in the same way real burdens are registered. The court made a means by which servitudes must be known to the law. There was a list created which is difficult to extend. This does not apply to servitudes created since 2004. The reason for this is s.75, that is that if you are creating a servitude expressly you have to register it against both properties – the benefitted and burdened property. The prospective purchaser can see it on the Register. You don’t have to register servitudes and so the categories are limited, but if you are creating a servitude by deed you must register is against both properties. Case law has created a sort of list: 1. Way (passage/access). By far the most important servitude. Has different levels: (a) pedestrian (iter) and (b) cattle (actus) and (c) vehicular (via) and (d) railway. If a servitude is created it is assumed to include the first two. 2. Parking vehicles. Not clear in Roman law, there were cases that doubted its position. Moncrieff v Jamieson: case which went to the HoL involving a property where there was a right of access to drive to the end of a cliff and stop. The house was down the bottom of the cliff’s incline and had to be accessed by foot. Was it implied that not only could they drive to the cliff end, but could they leave the car there? A garden wall was built which cut off the parking area. Court proceedings were raised. Decided that there was a servitude of parking linked with their servitude of access. Important step forward in Scots law, although there was some dissenting. Lord Hamilton’s dissenting opinion gave virtue for appeal. Law Lords held that you can have a servitude of parking vehicles, which can be implied from a servitude of access. However, this case on its facts was that the servitude of parking was accessory to the servitude of access. Is this always the case? Can you have a stand-alone servitude of parking?

Lecture 2 Fri 20th Jan Thomas & Thomas v Smith Area of land in rutherglen “cunninggar loop”. Showmans caravans are – a residential site for fairground workers. Parking on an adjacent site also. This was on for over 20 years. If you exercise a right which can be a servitude, over 20 years servitude by prescription. The question was whether it created a servitude by prescription Was a stand alone parking servitude enough? YES In principle – the law in scots does recognise a stand alone.

Aqueduct – watergand – the right to lead water through the burdened property: In roman law was only water; the Title Conditions Act 2003 s77 rendered this: Right to include pipe, cable, wire, etc. Aquehaustus – right to take water from stream or other source on burdened property; i.e. with a bucket. Sinks – right to send burdened property water other than in its natural state. Capabe of including sewage Oneris ferendi – right to be supported by adjacent building Tigni immittendi – right to insert beam into neighbouring property. Stillicide (eavesdrop) – right to allow water to fall from eaves – into neighbours land. Pasturage – historically cattle/sheep etc, you could have a servitude to allow your cattle to go on to your neighbours fields. [rural] Extracting materials a) Fuel, feal and divot – right to take peat for fuel and turf for fencing and roofing. Restricted to needs of the benefited property. Cannot sell the peat; only for the benefited property. b) Building materials. Right to take stipulated materials (eg stone, sand) for purposes of building on benefited property. c) Bleaching and drying clothes – Scottish courts accepted in 1798(?) that you could even hang out your clothes on your neighbours land. Nowadays with washing machines and tumble dryers not very important. In reasonably recent times, a tenement back green – the default position is that it is owned by the ground floor flats but if the upper flats have been hanging out their clothes for over 20 years – servitude. d) Overhang/projection – roman law – settled in Scotland - Compugraphics International Ltd v Nikolic – pipes overhung over neighbour land, the pipes and some ducts, established overhang.

In practice the courts reluctant to make new servitudes, because the point is that the servitudes don’t need to be in the register, can also be done by prescription. Iin principle you can add to the list. But difficult in practice. Mendelssohn v The Wee Pub Co Ltd 1991 Was there a servitude of sign handing? [over neighbouring property] said no, because romans had shops and signs yet never had this servitude Neill v Scobbie Electricity servitude? Wasn’t willing to recognize a servitude of electricity. S77 TCA Romano v Standard Commercial Property Securities – amusement arcade in ggow. The shop front, partly owned by someone else. Does scots law recognise servitude of shop front? No, scots law did not. If I am buying burdened property, I will see it on register TCA says that it is opened up, it is priarial Expressed shop sign would be valid. CREATION of servitudes Must be in formal writing: 1995 Act s1(2)(b) Under specificity principle of property law/certainty principle: Need to be clear what the servitude are benefiting and identify the property. Don’t have to give a detailed description of content; because there is case law. Axis West Developments Ltd v Chartwell Land Investments Ltd: ‘a servitude right of pedestrian and vehicular access over the road coloured yellow on the said plan.’ -

https://www.learn.ed.ac.uk/bbcswebdav/pid-2069917-dt-content-rid-3824069_1/courses/LAWS0813320167SV1YR/LAWS08133_Property_Law_%28Ord%29_28163_Disposition_by_Mark_Forbes_and_Jane_Forbes.pdf

although servitudes not used, can still be used. Moss Bros case word used was burden; not servitude – is to be avoided: Garden v Arrowsmith although got away with it here est not to again. S75 TCA – must be followed by dual registration against both properties. 75(3)(b) – pipe may go on for miles and miles – don’t need double registration for those. In a deed of servitude, the servitude is granted (ie to a grantee) by the owner of the burdened property. So, I own a field, I grant you a right of access through it.

A deed of servitude would be where both are in separate ownership. A conveyance is where the properties are being separated: Grant Reservation Own lecture theatre. Going to sell you the raised bit. Going to be a conveyance of this theatre. Still need to get out, or visit someone at the back. Servitude to visit Rob – grant or reservation? RESERVATION What is being conveyed is your property is the burdened and that is being created thus reserving the servitude. Opposite situation is GRANTING: granting you the right to enter my property to exit; burdening yourself you grant. Cross servitudes the conveyance both grants and reserves servitudes by implication implied term of a conveyance (only). So, no conveyance, no servitude by implication. May be by Implied grant or implied reservation: test for grant is whether the servitude is necessary for the reasonable enjoyment of the property which is granted how necessary is necessary? Cochrane v ewart “When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant.” – test of reasonably necessary quasi-servitude – at time of severance Gow’s Trs v Mealls – 2 adjoining plots owned by the same party. Plots A and B owned by same party. Access to back of plot A was often taken through plot B. alternative access however at front. Plot A was sold off in 1842, new owner continued to take access through B as well. Alternative access eventually blocked up as well. Had there been an implicit servitude granted? Had not in this case because the alternative access was perfectly good and enough. Held that although access was taken through the back before the split off, there was access the other way to be used. But, the court held that previous access was important. ASA International Ltd v Kashmiri Properties – property in Edinburgh

2 properties owned together, properties separated, at time of separation, had there been an implied servitude? The route had been previous used, a quasi-servitude, went to inner-house, servitude was not impliedly granted, however: It was also fairly easy to also go an alternative route. Access from front, did they also need access from the back? No, could just go round.

Property Lecture 3 As determined in the previous cases, servitudes can be created by implied grant. They can also be created by implied reservation - test for this is much more strict. You can imply to reserve a right to a servitude. The law says this can only happen in cases of utter necessity, for in general a granter must not derogate from his grant. Fergusson v Campbell 1913  Piece of land sold by owner of a mill.  The land included the mill lade (channel of water which serves the mill from the river)  It was held that a servitude of Aqueduct had been impliedly reserved because it was utterly necessary that the mill got water. Murray v Medley 1973  One party sold a house to another party (neighbouring house)  One house sold other retained.  It turned out that the retained house got it's water from a pipe underneath the house that had been sold. The question was - had the owner of the retained house impliedly reserved a servitude?  Sheriff here held that it was not utterly necessary to have running water (case of the dirty sheriff)  Old case - would not happen now. Difference in test between implied grant and implied reservation - reservation is stricter. "If I am giving you land and I want to retain rights It should be done expressly, if you forget tough luck" - this is one rationale of this rule. McEwan’s Exrs v Arnot  Sheriff applied similar tests to grant and reservation  Another test about running water  Applied a reasonably necessary test rather than utterly necessary. Implied servitudes and landlocked land? Compare an implied servitude right of access with the right of access to landlocked land, which has been held to be an inherent right of property. See *Bowers v Kennedy 2000 (polo mint case)  Hole in middle of polo mint. Area of land was owned and in 1945 the outer part was sold (outer mint). The middle part (enclave) was not sold - was an old chemical plant. A servitude was retained through the outer land to the public

 

road. In 1974 the middle part ceased to be used and no use was made of the access. In 1996 the middle area was bought by a new owner and he tried to take access through the surrounding land. The owners of the surrounding land argued that negative prescription applies (20 years of non use) therefore, it had been extinguished. The inner house said that there was a separate doctrine in operation here right to reach land locked land which is an inherent right. The right to reach land locked land is incapable of negative prescription.

(3) By positive prescription A servitude may be acquired by 20 years of possession. This may be based on a foundation writ but does not require to be. 1973 Act s 3(1)&(2). 3(1): If in the case of a positive servitude over land— (a)the servitude has been possessed for a continuous period of twenty years openly, peaceably and without any judicial interruption, and (b)the possession was founded on, and followed the execution of, a deed which is sufficient in respect of its terms (whether expressly or by implication) to constitute the servitude, 3(2): If a public right of way over land has been possessed by the public for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the right of way as so possessed shall be exempt from challenge. These are alternates; you can go under 3(1) or 3(2). It is usually 3(2) that is used. (4) By acquiescence ? (the reluctant acceptance of something without protest.) It tends to involve installation of things such as pipes or a dam. According to Bell; although it is rightly said that mere acquiescence cannot confer a right of property, it may confer a right of use of property or servitude. What can happen is that in servitudes which involve an encroachment, such as laying pipes to carry water, a landowner who acquiesces in the work being done will be personally barred from objecting later. Where the encroachment is obvious, successors of the land may be bound too.

HOW DOES A PURCHASER OF BURDENED PROPERTY FIND OUT? A purchaser of the burdened property will want to know of any servitudes that affect it. Servitudes created expressly since 28 November 2004 require to be registered on the titles of both properties. So a search of register will reveal them. But servitudes which have not been registered might only appear on the benefited property and not the burdened. It may have been made without registration, and by possession such as through prescription. To discover this you would check the state of possession by looking at property. Some servitudes may not be apparent. If this happens; you may can pursue a warrandice claim against the seller if servitude is a material encumbrance.

ANCILLARY RIGHTS The benefited proprietor is entitled to enjoy the servitude to its full extent subject to any conditions and to the law of nuisance. It is a real right enforceable against third parties. Ancillary rights may be specified in the deed creating the servitude. In the absence of this, these may be implied if: (a) the right is necessary for the convenient and comfortable enjoyment of the servitude and (b) it was within the contemplation of the parties at the time the servitude was created. In Moncrieff v Jamieson on the facts a right of parking was held to be ancillary to the right of access created under a deed. Two common ancillary rights: 1. Servitudes of service media: the right to leave things such as pipes on the burdened property 2. There is a right to repair and improve burdened property. Burdened owner can use the property but must respect servitude. Drury v McGarvie Right of way over farm land from farm land to cottage. There were animals so farmers put in gates and the owners of cottage were elderly and disabled and could not open gates. They were reasonable and for a legitimate purpose and they used reasonable person test - reasonable person could use a gate. This is an older case, now disability/discrimination would come into play. Obligations of the benefited property… 1. ONLY BENEFITED PROPERTY MAY TAKE BENEFIT And not neighbouring land which proprietor happens to own…

Irvine Knitters Ltd v North Ayrshire Cooperative Society Ltd  There was a large strip of property and part of it in the middle had a servitude right of access at the back.  They were using this servitude to deliver things for the whole strip of property  It was argued that it could only be used for the benefited property and not neighbouring property also owned by the co-op in this case.

But authorised users of benefited property (eg tenants, friends) may also use servitude Grant v Cameron (1991)  In this case it was held general public could use right of access to access a shop on the benefited property. Effect of division of benefited property?  Both parts remained benefited  There may be in an issue with increased use however 2. NO INCREASE IN BURDEN ON BURDENED PROPERTY Another implied obligation is not to cause any unwarrantable increase in the burden on the burdened property. (unwarrantable: not permitted by servitude in question. Baseline for increase is extent of servitude at time when first created. Two possible situations here. (a) Deed stipulates extent, e.g. Grant v Cameron - granted for all purposes. (above). (b) No deed or deed does not stipulate extent. A change in the type of use made of the benefited property is not in itself an increase in burden on the burdened property. Carstairs v Spence: a servitude right of access established by prescription. Benefited property was a market garden which then became a building site. Access route could still be used for purpose relating to this. In passage servitudes such as rights of access a change in the type of thing passing through MAY be an unwarrantable increase in burdened property. E.g. Kerr v Brown: servitude to carry water waste from sinks was established by prescription. It was held it could not be extended to cover sewage. Servitude cannot be wider than what prescription established. Increased use being an increase in burden is a question of scale. Keith v Texaco Ltd:

20 years of increased burden leads to new servitude by prescriptio...