Head 18:2

Question 1

At common law can the list of servitudes be extended?

Answer 1

In principle yes, but in practice very difficult. It seems that a new servitude must either be:
⁃ (a) closely analogous with some existing servitude, or
⁃ (b) required by technological/social/economic change and in conformity with existing criteria for servitudes.

Question 2

Mendelssohn v The Wee Pub Co Ltd 1991

Answer 2

Question of whether you could have a servitude of hanging a sign on a neighbour’s property. Held that since the Roman’s didn’t recognise this servitude, it was not a permissible servitude under Scots law. (However, AS is doubtful this case stands following Compugraphics)

Question 3

Neill v Scobbie 1993

Answer 3

Alleged servitude of electricity was not allowed, however this has been overruled by s 77(1).

Question 4

Romano v Standard Commercial Property Securities Ltd 2008

Answer 4

Restaurant in Glasgow. Front of the restaurant was painted further up the tenement. Held that there was no servitude of ‘shop front’ (so this case is similar to Mendelssohn but doesn’t fit very well with Compugraphics)

Question 5

Is there still a fixed list of servitudes?

Answer 5

But the fixed list no longer applies to servitudes created by writing and registration - so servitudes created expressly since 28 November 2004 are not bound by the list (by virtue of s 76 TCA 2003).

Question 6

So as a result of s 76 TCA 2003?

Answer 6

This means that you can now create a servitude of any type as long as it satisfies the general requirements.

Question 7

Two ways servitudes can be created?

Answer 7

1) Expressly

2) Impliedly

Question 8

[Express creation of servitudes]

Main requirements for creation of express servitudes

Answer 8

1) Writing - RW(S)A 1995 s 1(2)(b) because a servitude is a real right in land.
2) Identify and describe both the burdened and the benefited property
3) Register the servitude against both the benefited and burdened property (TCA 2003 s 75)
4) Describe the servitude (e.g. “way”) or for new servitudes (those not on the fixed list) you may need to be more specific.

[WIRD]

Question 9

[Express creation of servitudes]

Does the word “servitude” need to be used?

Answer 9

It is not essential to use the word ‘servitude’ but it is desirable; however it must be made clear that you are binding successors etc rather than simply creating a contractual right so it would be foolish not to use the word servitude.

Question 10

Moss Bros v Scottish Mutual Assurance 2001

Answer 10

There was a right of access down a fire escape however the word servitude had not been used. Nevertheless the court held on the facts that this was a servitude.

Question 11

Dual registration is not required for…

Answer 11

Pipeline servitudes (s 75(3)(b))

Question 12

Was dual registration required under the old law?

Answer 12

NO - but now it is required!!!!!

Question 13

Two ways an express servitude can be created?

Answer 13

1) Deed of servitude (by grant by the owner of the burdened property)
2) Conveyance (by either grant or reservation).