Head 18: 4 Flashcards
(16 cards)
When can ancillary rights be implied to servitudes?
If:
A) the right is necessary for the convenient and comfortable enjoyment of the servitude and
B) it was within the contemplation of the parties at the time the servitude was created
(Moncrieff v Jamieson 2008)
Moncrieff v Jamieson
The right of parking was held to be ancillary to the right of access created under the deed
Two common ancillary rights to servitudes:
- The right to erect and leave things on the burdened property (e.g. pipes, septic tank)
- Right to repair / improve the burdened property to a limited extent (subject to other controls over exercise of servitudes - NB there is no obligation to repair on the burdened owner)
Drury v McGarvie 1993
There was a route through farmland from a public road to a cottage. The farmer’s animals were straying onto the road so the farmer erected stock proof gates. However the owners of the cottage had difficulty opening the gates (they were elderly / disabled). It was held on the facts that putting up the gates was reasonable because it was for the purpose of keeping animals in and the criteria was whether the average person could open the gates without difficulty.
[NB this case is from 1993 and it would quite possibly be decided differently as a result of discrimination legislation.]
What properties can benefit from a servitude?
ONLY THE BENEFITED PROPERTY (however authorised users of the benefited property (like tenants and friends) may also use the servitude - Grant v Cameron 1991)
*Irvine Knitters Ltd v North Ayrshire Cooperative 1978
The Irvine Coop was on two plots. There was a busy road at the front but there was a servitude right of access at the back to plot 1. The coop were taking the groceries via the servitude to plot 1 and to plot 2. The owners sought interdict and they won. It was held that ‘[T]hey [the benefited owners] may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non-dominant subjects.’
Grant v Cameron 1991
The benefitted property was used as a shop and it was held that the public could use the servitude.
NB AS thinks that this is a case which was decided on the facts (the servitude said something along the lines of being available for “all purposes”).
What happens if a benefited property is divided?
In principle, both parts remain benefited. However, in some situations the new part may be so far away from the access route that it is too far away to satisfy the praedial test and thus may not benefit from the servitude.
Can the burden on the burdened property increase?
In general there cannot be an increase in the burden on the burdened property.
In easy cases how can you tell whether there has been an increase in the burden on the burdened property?
There can be easy cases where the deed stipulates the extent of the servitude: e.g. where there is a servitude of ‘pedestrian access’, in which case you clearly cannot drive a car along the route (Grant v Cameron)
Grant v Cameron
Look this up
In hard cases (no deed or where the deed does not stipulate the extent of the servitude) how can you tell whether there has been an increase in the burden on the burdened property (3 general rules)?
1) Change in the use made of the benefitted property is not in itself an increase in the burden on the burdened property (Carstairs v Spence 1924)
2) In passage servitudes (e.g. way, aqueduct) a change in the type of thing passing is an increase in the burden (Kerr v Brown 1939)
3) Whether increased use is an increase in the burden depends on the scale of the increased use.
(Keith v Texaco 1977 + Alba Homes v Duell 1993
Carstairs v Spence 1924
There was a servitude right of way created by prescription. At the time that it was established the benefitted property was a market garden. It then subsequently became a building site for houses. At this point the owner of the route sought to interdict this use - he objected to the benefitted proprietor carrying building materials. The court held that on the facts there was not an impermissible increase
Kerr v Brown 1939
A servitude to carry waste water away from sinks was established by prescription. It was held that this was not capable of including sewage because sewage is a more significant type of thing passing than simply dirty water from sinks.
[⁃ Kerr also demonstrates the rule: tantum praescriptum quantum possessum: this means that the amount of the prescription is measured by possession. In other words, you cannot have a servitude beyond what the prescription established. However, there is no objection if the new thing is simply a modern version of the original thing - thus a car can be used in the 21st century for a servitude originally for carriages.]
Keith v Texaco 1977
The benefitted proprietor wanted to turn a field into 20 houses. It was held this would amount to too great an increase in the burden. NB this case has a subtlety in it that the field itself was also subject to a real burden of prohibition against building. The servitude was conferred in the same deed that said no building. So it wasn’t purely about the fact that there were 20 houses, the fact that there was a building prohibition was also important.
Alba Homes v Duell 1993
A plot of land had one house on it and the owners proposed to build a second house. It was held that the servitude could be used to reach the second house (but again, the point was not argued in any detail in this case and it is only a sheriff court case.)
