Property 9-10

What is a servitude?

A real right allowing limited use of another’s land.

What must a servitude have?

A burdened property and a benefited property.

Which statute now regulates servitudes alongside common law?

Title Conditions (Scotland) Act 2003.

Do negative servitudes still exist?

No.

What happened to negative servitudes?

Converted into real burdens in 2004.

What is the praediality requirement?

The servitude must benefit the land itself.

What is repugnancy with ownership?

A servitude must not destroy ownership rights.

Which case held parking could be a valid servitude?

Moncrieff v Jamieson.

Give examples of recognised servitudes.

Access, parking, drainage, water, support, pasturage.

What is the servitude of access?

Right to pass over land.

What is aquaeductus?

Right to lead water over land.

What is aquaehaustus?

Right to take water from land.

What does s 77(1) TC(S)A 2003 allow?

Servitudes for pipes, cables, and service media.

What is oneris ferendi?

Right to receive support.

What is tigni immitendi?

Right to insert a beam into a neighbouring building.

What is eavesdrop or stillicide?

Right for water to fall from a roof onto neighbouring land.

How can servitudes be created expressly?

By grant or reservation in writing.

Is the word “servitude” required?

No.

What formalities are required for express creation?

Writing and dual registration.

What is implied grant of servitude?

Servitude implied on transfer if necessary for reasonable enjoyment.

What test applies to implied grant?

Necessary for reasonable enjoyment.

What test applies to implied reservation?

Utter necessity.

Which case illustrates implied grant?

Cochrane v Ewart.

Which case illustrates implied reservation?

Ferguson v Campbell.

Can servitudes be created by prescription?

Yes.

What are the requirements for prescriptive servitudes?

20 years’ open, peaceable, uninterrupted use.

What is quasi-possession?

Possession adapted for incorporeal rights.

What must exercise of a servitude be?

Civiliter.

Can the burden of a servitude be increased?

No.

What rights does the benefited proprietor have?

To enter land and enforce the servitude.

What duties does the benefited proprietor have?

Use only for benefited land and without increasing burden.

What rights does the burdened proprietor have?

Full enjoyment of ownership subject to servitude.

What duties does the burdened proprietor have?

Not to obstruct the servitude.

How can a servitude be extinguished?

Discharge, prescription, confusion, acquiescence.

What happens on confusion?

Servitude is extinguished.

How long does negative prescription take?

20 years.

Which body can discharge servitudes?

Lands Tribunal for Scotland.

What is a lease?

A contract granting use of land for rent and time.

What are the four essentials of a lease?

Parties, property, rent, duration.

What is the maximum length of a lease?

175 years.

Is exclusive possession required?

Generally yes.

What is rent?

A periodical payment.

What distinguishes a lease from a licence?

Exclusive possession and intention.

What case addresses shared possession?

Gyle Shopping Centre v Marks and Spencer.

What statute governs short leases?

Leases Act 1449.

How are long leases constituted?

Registration.

When does a lease become a real right?

On possession (short) or registration (long).

Which lease terms bind successor landlords?

Fundamental (inter naturalia) conditions.

What is irritancy?

Termination for material breach.

What statute regulates irritancy?

Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

What is tacit relocation?

Implied continuation of a lease.

When does tacit relocation arise?

When no valid notice is given at the ish.

What is the ish?

The end date of a lease.

Can tacit relocation be excluded?

Yes.

How else can leases be terminated?

Break clause, renunciation, frustration.

What options does a tenant have to exit early?

Assignation or sub-lease.

What is assignation of a lease?

Transfer of tenant’s interest.

What is a sub-lease?

Grant of a new lease out of the tenant’s lease.

Are leases nominate contracts?

Yes.

What does that mean?

Terms are implied unless excluded.

Are residential leases heavily regulated?

Yes.

What is the main modern private tenancy?

Private Residential Tenancy.

What is a servitude’s relationship to real burdens?

Similar structure but allows use rather than restriction.

What does a coelo usque ad centrum mean?

Ownership from sky to centre of earth.

What are pertinents?

Rights or property attached to land.

What are presumed pertinents?

Common stairs, passages, river alveus.

What is encroachment?

Physical intrusion beyond boundary.

How does encroachment differ from trespass?

Encroachment is permanent interference.

What remedies exist for encroachment?

Interdict or removal.

What is nuisance?

Unreasonable interference with enjoyment of land.

What must be proven for nuisance?

Plus quam tolerabile interference and fault.

What is aemulatio vicini?

Malicious but lawful use of land.

What must be shown for aemulatio vicini?

Malice.

What statute governs access for repairs in tenements?

Tenements (Scotland) Act 2004.

What rights does the 2003 Land Reform Act create?

Public access rights and community rights to buy.

What is a community pre-emption right?

Right to buy land if owner decides to sell.

What further rights did the Community Empowerment Act 2015 add?

Rights to buy abandoned or neglected land.

What body advises on land reform?

Scottish Land Commission.