Disputes concerning servitudes in Scotland
Produced in partnership with Seb Galastro of DLA Piper Scotland LLP
Disputes concerning servitudes in Scotland

The following Property Disputes practice note Produced in partnership with Seb Galastro of DLA Piper Scotland LLP provides comprehensive and up to date legal information covering:

  • Disputes concerning servitudes in Scotland
  • Essential features of a servitude
  • Disputes concerning servitude rights claimed by prescription
  • Requirements
  • Possession
  • Disputes concerning increasing the use or burden of a servitude and prescription
  • Rights of the benefited proprietor
  • Obligations of the benefited proprietor
  • Rights of the burdened proprietor
  • Obligations of the burdened proprietor
  • More...

Essential features of a servitude

The requirements for a valid servitude are set out in Practice Note: Servitudes in Scotland—Requirements for a servitude. Servitudes must be positive ie they must be the right to do something rather than a restriction preventing the burdened property being used in a particular way (eg prohibiting building on the burdened property above a certain height). It became incompetent to create negative servitudes on 28 November 2004 by virtue of the section 29 of the Title Conditions (Scotland) Act 2003 (TC(S)A 2003).

The following four features should be considered in addition when determining whether a servitude exists:

  1. controllable by law—in Dyce, it was held that if a right claimed is not susceptible to judicial control, it will not be recognised as a servitude. In both Fearnan and Henderson, this included rights which were set out in such vague terms that they were incapable of enforcement by the courts.

  2. subordinate, praedial, real right—a servitude can only exist over one property (a burdened, or servient, property) in favour of another (a benefited, or dominant, property) owned by a different person (see: Donaldson's Trs v Forbes (1839) 1 D 449 (not reported by LexisNexis®)). The owner of the benefited property is entitled to enforce the servitude and the owner of the burdened property is obliged to accept this (see: Grierson). Servitudes affect the

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