In the third in a series of articles, John Stirling, partner and property litigation specialist at Gillespie Macandrew, explores the complex area of servitudes and reveals why neighbourly cooperation can often achieve more than litigation
FEW neighbour disputes are as persistent, or as difficult to resolve, as those involving servitudes. These are potentially perpetual rights, which allow one property to benefit from another. Their origins are ancient but they continue to create very modern headaches for landowners, developers and their advisers.
The servitude itself might have ancillary rights attached to it. They are the rights needed to exercise the principal servitude. The servitude, and its ancillary rights, travel with the land into whichever ownership they fall. Sub-dividing land can itself create servitudes and ancillary rights by implied grant or reservation where the benefited land comprises one part and the facilities serving it are located in another. That is subject to some limitations, one of which is that servitudes must benefit land (the benefited tenement) relatively close to the burdened land (the burdened tenement).
In 1979, parliament sought to create a register that told you, by reference to a map, who owned what of Scotland. The architects of the Land Register of Scotland (the Register) sought to set out what rights land enjoyed and what obligations it was burdened by. The architects’ aspirations have had to bow to circumstance as the Land Register is not a complete mirror of reality, but the concept of the faith of the Register still guides the courts.
The general concept is what you see on the Register is what you get. No one wants ‘off-Register’ rights or ‘on-Register’ rights which are not enforceable.
Servitudes are a problem. They can be created by use (called positive prescription) and lost by non-use. They can be pruned by a period where use is actively prevented by the burdened owner (both called negative prescription). They can also be lost through abandonment and acquiescence.
What is still valid or created by positive prescription depends on evidence. Predicting the extent of the servitude and of any ancillary right is hard.
The onus is against the person seeking to establish the right. Servitudes are the stuff of nightmare for solicitors and counsel. They are an accepted unknown with consequences difficult to predict and so, contain.
Anecdotally, servitudes trouble the courts more often than any other property question. Such cases tend to run because (1) they impugn the burdened owner’s freedom of possession, which seems to nettle, (2) the dice are loaded against the benefited owner (above), and (3) where they are contested, servitudes created by positive prescription do not enter the Register without a court decree declaring them.
The faith of the Register is further undermined by the fact that rights similar to servitudes can be created by leases. Common examples are leasehold access and drainage benefitting the main leased site. Leases do not need to enter the Register at all, and in any event can be for a restricted period (as the lease is).
One wrinkle is that a servitude, once created, is preserved by use as infrequently as only once every 20 years, and, for written grants, use by any method permitted by the grant preserves every permitted use.
Some servitudes are not in any way obvious. A pipeline may be buried underground; it may carry water or communications. Use itself might not be very burdensome, particularly if it is less extensive than the grant allows, and may go un-noticed.
The prevention or limitation of use might not be noticed either. If there is a written right of access by vehicle, and that route is blocked by a gate, what is the legal consequence of simply hopping over the gate, and carrying on by foot?
The prescriptive period aside, what about abandonment? It, too, will terminate a servitude. Abandonment within the prescriptive period depends on the benefited owner’s actions and intentions, objectively assessed. However, the test is little more than a question: how should neighbours, tied together by a servitude, play nicely?
Acquiescence is subject to conflicting authority, but the same question is as good a test for it as for abandonment. It’s difficult to predict what answer a court might give to such a question.
The principle seems to be that, where two perpetual rights exist in the same thing, the greater right should suffer the rights of the lesser. The owners of the single track roads must reverse when they meet a servitude holder. Why? That’s the gracious thing to do. In practice, a little neighbourly cooperation in respect of a clearly expressed servitude set out in a Deed of Servitude and registered in the Register can often achieve more than years of litigation over rights.
