BURDENS & SERVITUDES

burdens, servitudes and long leases create title conditions
1. on land & hertibale property
  1. real burdens & servitudes run with the land
    1. affect benefited owner (dominant/benefited tenement)
    2. affect benefited tenant (servient/burdend tenement)
real burdens creation of fuedal land system
1. appeared late 18th century
  1. contract between superior and vassal
2. expressed in a deed is easy to prove
  1. creature of contract in fuedal form
    1. burdens are strictly interpreted
      1. must stand on its own & not refer to something outwith the deed
        Aberdeen Varieties Ltd v James F Donald (Aberdeen Cinemas)
  2. person selling smaller pieces of ground
    1. has power to create real burdens
      1. purchaser of smaller ground has to abide by the burden
3. contractual in nature, encompass wide legal form of interpretation
  1. needs to be retained right to enforce the burden
    1. registered in Land Register/Register of Sasines
    2. Title Conditions (Scotland) Act 2003 s1(1)
      1. real burden is encumberance on the land, constituted in favour of the owner of the land
        in that persons capacity as owner of that land
abolition of fuedal land system abolished - fuedal conditions are abolished
1. but real burdens continue to exist, provided ther is a benefited property (dominent tenant)
  1. and burdened property (servient tenement)
  2. governing law Title Conditions (Scotland) Act 2003
    1. two types of real burden
      1. 1) affirmative burdens - obligations to do something
        such as maintain a boundary
        2) negative burdens - obligations not to do something
        such as not play tennis on a Sunday
        Marsden v Craighelen Lawn Tennis & Squash Club
2. still possible to create a real burden
  1. usually in just 2 circumstances
    1. 1) when land is subdivided
    2. 2) when land is developed
    3. have legal effect once created
      1. must be entered into the deeds General Register of sasines OR title sheets (Land Register) of both affected properties
Property transferred to Land Register on first registration
1. Keeper will copy the wording of the previous burdens from existing sasine deeds
  1. Keeper will state deed original burden is in
    1. then - narrate the wording of the burden in full
    2. contrast with servitudes they don't appear on GRS, unless constituted in a written deed
      1. Keeper will note servitudes created by implication/prescription
        theses servitudes are 'overriding interests'
extinction of a real burden by 4 means
1. 1) by minute of waiver - where all parties agree to remove/restrict operations of real burdens
2. 2) by Land Tribunal application - by owner of burdened property and served on all interested parties
3. 3) by negative prescription and acquiesence - after 5yrs a material breach of a real burden can extinguish it by negative prescription
  1. s18 2003 Act and formerly 20 yrs
  2. by acquiesence if owners of the benefited property(ies) have consented to the breach
    1. or if work carried out by the burdened proprietor renders the enforcement of the burden impossible as specified in the burden
      1. benefited proprietor knew or ought reasonably to have known about the work and didn't object or enforce their interest
        Robson v Chalmers
4. 4) operation of sunset rule
  1. intended to enable obsolete burdens to be removed
    1. where burden is over 100 years old
      1. owner of burdened property draws up notice of termination
        must be served on owners of all benefitted properties
        publicised by attachment of copy of notice to burdened properties
        attached to nearby lampposts
        burden will cease unless objection is made to Land Tribunals
        within 8 weeks by benefited party wishing burden to remain
SERVITUDES
1. product of Roman Law
  1. many presumed but some are registered
    1. most arise by informal agreement and use
2. created by express deed
  1. by use followed by positive prescription (20yrs)
  2. by implication
    1. example of in Bowers v Kennedy
      1. previously benefited right of access became landlocked, there always exists an implied right of access
        Note: as a result access is an imprescribable servitude right
        owner of landlocked property would still have a right of access
        Inverness Seafield Co Ltd v Mackintosh
3. Division of benefited property
  1. could lead to proliferation of benefited properties
    1. but there is Civiliter Rule
      1. states a burdened servitude cannot be increased
        to detriment of burdened proprietor
        rule applies where propety has benefit of access right is divided
        potentially multiplying the user and the use of access
        increase would contravene the civiliter rule
4. Extinction
  1. extinguished by formal discharge
    1. granted by all benefited parties
    2. application to Lands Tribunal
  2. non use - prescriptive period 20 yrs
    1. note: this is different period from that of real burdens
    2. also note Bowers v Kennedy
      1. example of an imprescribable servitude
  3. acquiesence
    1. activity of burdened proprietor inconsistent
      1. with future exercise of the servitude
        where consent given or no objection made within reasonable time
        benefited proprietor knew or ought reaonably to have know of the works in question
        Robson v Chalmers Property Investment Co Ltd
  4. by confusion
    1. occurs where benefited and burdened properties come into single ownership
      1. but not clear whether they revive when the ownership is divided again
Land Tribunal
1. effectively: independent civil court
2. statutory powers to deal with variety of disputes
  1. involving land or property
3. can act as an arbitrator on request from the parties
  1. deal with any type of dispute
4. authority of operation: Land Tribunals Act 1949
5. purely a statutory court
  1. jurisdiction to hear disputes arising from the statute
6. also jurisdiction for servitudes by written deed only
  1. but not by informal agreement

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BURDENS & SERVITUDES

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