Head 18: 1

Question 1

Title Conditions (S) Act 2003 s 122

Answer 1

Gives a list of title conditions.

Question 2

What are the three most important title conditions?

Answer 2

1. Servitudes
2. Real burdens
3. Conditions in long leases

Question 3

What is a servitude?

Answer 3

A servitude is a right of one landowner to make some limited us of one’s neighbour’s land, the need to control his anti-social activities, and the need for a mechanism for maintaining property owned or used in common.

Question 4

Servitudes require two properties which are…

Answer 4

1) Neighbouring, and

2) In separate ownership

Question 5

Servitudes “run with the land” as…

Answer 5

Real rights

Question 6

In order to qualify as a servitude a right must:

Answer 6

1) Consist of a right to enter/make use of the burdened property
2) Confer praedial benefit on the benefited property
3) Not be ‘repugnant with ownership’ (TCA s 76(2))
4) 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 s 76(1))

Question 7

Can there be negative servitudes?

Answer 7

NO - all existing negative servitudes became real burdens on 28 November 2004 and no new negative servitudes are allowed (TCA 2003 ss 79 and 80)

Question 8

Patrick v Napier (1867)

Answer 8

Two pieces of land were not contiguous. The alleged burdened property was beside a river and the servitude was trout fishing (so the benefited proprietor could go and fish for trout in the river of the burdened property). However the court held that trout fishing was not ‘praedial enough’ - it wasn’t specifically for the benefit of the alleged benefited property that.

Question 9

What is the fixed list of servitudes?

Answer 9

1) Way (iter, actus, via, railway)
2) Parking vehicles
3) Service media
4) Support
5) Stillicide
6) Pasturage
7) Extracting materials
8) Bleaching and drying clothes
9) Overhand / projection

Question 10

What are the 4 types of “way”

Answer 10

1. Iter - (pedestrian access)
2. Actus (cattle access)
3. Via (vehicular access)
4. Railway

Question 11

What case established that parking could be a servitude?

Answer 11

*Moncrieff v Jamieson 2008

Servitude of parking can be either ancillary or free-standing.

LOOK UP THIS CASE

Question 12

What are the three types of “service media”

Answer 12

1) Acqueduct (right to lead water through the burdened property - now extended to any pipe cable, wire by TCA s 77)
2) Acquaehaustus (right to take water from stream or other source of burdened property)
3) Sinks (right to send over burdened property water other than in its natural state - e.g. sewage)

Question 13

Two types of “support” servitude?

Answer 13

1) Oneris ferendi - right to be supported by an adjacent building
2) Tigni immttendi (right to insert beam into neighbouring building)

Question 14

What is “stililcide”

Answer 14

This is the right to allow water to fall from eaves (i.e. roof on to your neighbour’s land)

Question 15

What is “pasturage”

Answer 15

The right to pasture animals on the burdened property (cattle originally but extended by caselaw to sheep too)

Question 16

Two main types of “extracting minerals”

Answer 16

1) Fuel, feal and divot - (right to take peat for fule and turf for fencing and roofing)
2) Building materials (right to take stipulated materials (e.g. stone, sand) for purposes of building on benefited property)

BOTH RESTRICTED TO NEEDS OF BENEFITED PROPERTY.

Question 17

What is overhang / projection?

Answer 17

Right to overhang / project over burdened property (Compugraphics International v Nikolic 2011)

Question 18

Compugraphics International v Nikolic 2011

Answer 18

Industrial building with a ventilation system and some of the pipes were on the outside of the building and stretched into the neighbours airspace. It was held this was a permissible servitude.