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:
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:
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.
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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Produced with input from Rebecca Cousin of Slaughter and May on market practice.This Practice Note summarises the rules and guidance in relation to parties who are, or may be presumed to be, acting in concert for the purposes of The City Code on Takeovers and Mergers (the Code). In particular the
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