Servitudes in Scotland
A servitude is a right that a landowner has over neighbouring land.
Servitudes require two properties in separate ownership. The properties either need to be neighbouring or close enough for the right to be required. Common examples include:
- Pedestrian and vehicular access; and
- The right to run pipes and cables.
A servitude can be created and extinguished in a variety of ways. In terms of creation, a servitude may be created in writing, reserved when selling land or by use over 20 years. Conversely, a servitude may be extinguished by agreement, when both properties come into the same ownership or by non-use over 20 years.
A servitude can only be used in connection with the property benefiting from the right. It must be exercised reasonably, without creating a nuisance and only exercised for the purposes for which it was granted.
Certain types of servitude created prior to 28 November 2004 did not require to be registered in the title deeds of either landowner’s property. This left open the possibility of servitudes being in existence without that being ascertainable from the titles.
When issues arise the landowner benefiting from the servitude may raise an action seeking the court to establish the existence of the right, an interdict to prohibit any restriction on the exercise of the right and for damages. The landowner who the servitude is granted against may raise an action in the Lands Tribunal for the right to be varied or discharged.
For further information, please contact Tom Hempleman.< Back