Head 18:3

Question 1

When can servitudes be impliedly created?

Answer 1

ONLY IN A CONVEYANCE (when both pieces of land are owned by the same person and then are split)

The servitude can either be created by implied grant or reservation.

Question 2

[Servitudes created by implied grant]

What is the test for servitudes created by implied GRANT?

Answer 2

For servitudes created by implied grant the test is whether the servitude is “necessary for the reasonable enjoyment of the property which is granted” (*Cochrane v Ewart (1861))

Question 3

[Servitudes created by implied grant]

In relation to servitudes created by implied GRANT, what was the word ‘necessary’ held to mean?

Answer 3

“necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant.” - (*Cochrane v Ewart 1861)

Question 4

[Servitudes created by implied grant]

What normally exists at the time of severance of the properties?

Answer 4

A quasi servitude (In other words, that part of the land which becomes benefitted is already using that part of the land as an access before the severance.)

Question 5

[Servitudes created by implied reservation]

When can servitudes be created by implied RESERVATION?

Answer 5

Reservation is only implied in the event of UTTER NECESSITY, for in general a granter must not derogate from his grant.

Question 6

Fergusson v Campbell 1913

Answer 6

This concerned a mill-lade (a channel of water required to serve a mill). This was an alleged case of implied reservation and it was held to be utterly necessary that the mill was served with water - it couldn’t function without a water supply.

Question 7

Murray v Medley 1973

Answer 7

The sheriff held that a water supply to a house was not utterly necessary. [This decision would probably be decided differently today.]

Question 8

McEwan’s Exrs v Arnot 2004

Answer 8

This is recent authority to suggest that the same test be applied to grant and to reservation.

Both Reid and Gretton agree that there should be no difference between the test for implied grant and implied reservation.

Question 9

There is an inherent right to…

Answer 9

Reach landlocked land which CANNOT negatively prescribe - RES MERAE FACULTATIS (*Bowers v Kennedy)

Question 10

*Bowers v Kennedy

Answer 10

Individual owned a piece of land and sold off a middle part (an enclave). They granted a servitude but the property in the middle wasn’t used for more than 20 years. As a result the servitude negatively prescribed (or at least it was argued that it had). This meant the owners couldn’t get from the road to the middle.

However, it was held that there was in inherent right to reach the property which does not negatively prescribe. (This is in schedule 3 of the 1973 Prescription and Limitation Act and is known as a res merae facultatis.)

Question 11

What provision provides for servitudes being created by positive prescription?

Answer 11

1973 Act s 3(1)+(2).

s 3(1) requires a deed + 20 years possession [NEVER USED]

s 3(2) requires 20 years of exercise

Question 12

1973 Act s 3(2) requirements

Answer 12

20 years open, peaceable, without judicial interruption exercise of the land.

AND

The possession must be ADVERSE - exercised “as if the servitude right were actually held”.

Question 13

Can a servitude right be created by acquiescence?

Answer 13

You probably cannot create a real right of servitude by personal bar.

Question 14

How does the purchaser of burdened property find out about a servitude?

Answer 14

1) Check the Land Register / Register of Sasines (but nb not all servitudes are registered)
2) Check the state of possession (check if someone exercising a servitude)
3) Keep fingers crossed / sue the seller in warrandice.

Question 15

If you sue the seller in warrandice over a servitude…

Answer 15

You can only claim if it is a material servitude and you didn’t know about it at the time of acquisition (Welsh v Russell (1894)).