Every month, lawyers from Harper Macleod - the biggest Scottish law firm with an office in Shetland - share their insights on issues which can affect local businesses and individuals.
Richard Donaldson, an Associate at Harper Macleod, looks at the rights which can make a big difference to the use of land.
Is access to your property taken over someone else's land? Is your septic tank or soakaway situated on a neighbour’s land? Do you know where you stand with these rights?
The technical term for these rights, and many others besides, is “servitudes”. At the most basic level a servitude allows the owner of one property to make some use of a second property he or she does not own where it is necessary for the use of the property which he or she does own. Servitudes therefore restrict property ownership on the one hand and benefit property ownership on the other.
Servitude rights are "real rights". In other words, they are rights which attach to the land and are capable of binding each subsequent owner of the land. Given the significance of servitudes, you would think that it goes without saying that they would be written down, recorded, even, in the Land Register so that every time you purchase a property, searches can be carried out to ensure you know exactly what you are about to purchase (or not purchase). Well, therein lies the confusion. Because of the ways in which servitudes can be created they do not require to be written down in order to be valid. With this level of uncertainty, servitudes have understandably been the subject of much litigation over the years.
How are servitudes created?
There are three ways in which servitudes are created: 1) they can be expressly granted by one party in favour of another and documented in a formal deed; 2) they can be implied through the surrounding facts and circumstances if the servitude is said to be necessary for the reasonable and comfortable enjoyment of land; or 3) they can be created though usage which is open, peaceable and without judicial interruption for a period of 20 years. Of these three, only the express grant is in writing so you can easily see why confusion and disputes may arise.
Equally, servitudes can be lost by non-use over a period of 20 years. Proving the existence (or loss) of rights where nothing is in writing can be problematic. Often the best that can be done is to obtain affidavits (sworn statements from those who can attest to the facts) that the rights have (or have not) been used for the required period of time.
There are conditions attached to servitudes. Some conditions are implied as a matter of law, but the parties are free to agree any specific conditions they choose in addition to those implied by law. For example, the law implies that a servitude right must be used in such a way as to cause the least inconvenience to the burdened property. Therefore, if someone has a right of access over your track, you must permit them use of the track, but he or she can’t force you to maintain the track, unless that was specifically agreed.
If you have any queries about servitudes then contact Richard who will be happy to discuss.
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This article originally appeared in the Shetland Times