Head 18:5 Flashcards
(11 cards)
6 ways in which servitudes can be extinguished?
A) By agreement B) By non-exercise: negative prescription C) By breach: acquiescence D) By confusion E) By compulsory purchase F) By the Lands Tribunal
a) How does extinguishment of servitudes by agreement take place?
This occurs by a deed of discharge being granted by the benefited proprietor (this must be in writing under RW(S)A s 1(2)(a)(i).
If the servitude is on the title of the burdened property the only way of extinguishing it is by a deed registered against that title under the TCA 2003 s 78.
b) How does extinguishment of servitudes by negative prescription take place?
Since servitudes are real rights in land they prescribe negatively after 20 years under s 8 of the 1973 Act.
Can all servitudes negatively prescribe?
No - there is an inherent right of a landowner to reach landlocked land (res merae facultatis) (see earlier) (Schedule 3 (c) 1973 Act and Bowers v Wilkins).
c) How does extinguishment of servitudes by breach and acquiescence take place?
If the benefitted proprietor stands back and lets the burdened proprietor prevent the use of his servitude then he or she may be barred from objecting later on.
Also, if the burdened proprietor prevents the use by a certain extent, to which the benefitted proprietor does not object to, then they would be barred from objecting to this. The effect of this would be that the servitude is reduced.
In other words, e.g. if there is a servitude of access and the burdened proprietor partially builds across it and the benefitted proprietor doesn’t object then they would be barred from doing so and the servitude would be reduced in scope.
d) How does extinguishment of servitudes by confusion take place?
If the benefited and burdened property come into the same ownership, then the servitude is extinguished (under the common law).
Can a servitude extinguished by confusion ‘reappear’?
If you subsequently separate the two properties then there may be a new servitude by implication (so in effect it reappears but strictly it is a new servitude).
e) How does extinguishment of servitudes by compulsory purchase take place?
Compulsory purchase of land extinguishes both real burdens and servitudes (ss 106 TCA 2003).
If you acquire land voluntarily where you could have used compulsory purchase powers, there is a procedure whereby you can extinguish the servitudes and real burdens by giving notice to the holders, and unless the holders go to the Land Tribunal and persuade it to retain the servitudes/real burdens then they will be extinguished (s 107).
e) How does extinguishment of servitudes by the Lands Tribunal take place?
The Lands Tribunal is a special court which had jurisdiction over title conditions (including servitudes). Wasn’t covered in any more detail than this - probably not too important but perhaps look up
What is a wayleave?
A wayleave is a pipeline or cable ‘servitude’ (typically in favour of gas/electricity companies etc). There are often statutory powers for these (e.g. The Electricity Act 1989).
Are wayleaves valid at common law?
In broad terms it depends whether there is a benefited property or not (e.g. a power station). If so then they can be brought within the law of servitudes. If there is no recognisable benefited property then they are not valid at common law (and thus only valid under the relevant statutory provisions).
