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What is a servitude?

A servitude is a subordinate real (ie relating to land) right over a property for the benefit of other properties. Servitudes give other people, such as owners of neighbouring properties, rights over your property. The servitude only allows them to use part of your property in a certain way.

The property with the servitude imposed on it is known as the burdened property, while the property that benefits from the servitude is, as the name suggests, the benefited property.

A common example of a servitude is a right of access. A neighbour could have the right to cross part of your property to allow them to get from their house to a public road or path. Other common servitudes are the right of drainage, the right to lay utility cables, and the right to take water from a private source.

Why are servitudes important?

Servitudes can have a big impact on how you use and enjoy your property. If you’re buying a house, it’s important to know about any servitudes giving other people rights to use the land in a way that would spoil your enjoyment of it.

Servitudes created since 2004 must be positive (ie grant a right and not a restriction). New negative servitudes are no longer permitted and those already established must meet strict criteria under Scottish law, otherwise they will be invalid.

How do I check if a property is affected by servitudes?

Residential and commercial property, as well as undeveloped plots of land, can be affected by servitudes. Your solicitor should check the position on servitudes when completing a conveyancing process. This can sometimes be complicated as servitudes won’t always appear in the title deeds to a property; in some cases these rights are created by use or non-use. It’s important to get the right legal advice from a lawyer who knows what to look out for.

Creating servitudes

The most straightforward way to create a servitude is by expressing grant in a deed, so long as it meets the criteria (ie it is positive, relevant to the right, and confers a benefit).

A servitude can also be created by prescription, provided that the right has been enjoyed peaceably for 20 years ‘openly, peaceably and without judicial interruption’. 

Another method is by implied grant or implied reservation. The servitude must be reasonably required for the comfortable use and enjoyment of the benefited property. The existence of the right has to be obvious from the relevant facts and circumstances.

Extinguishing servitudes

Servitudes can be extinguished by:

  • express discharge by the owner of the benefited property or by court decree

  • renunciation by the owner of the benefited property

  • discharge or variation by the Lands Tribunal for Scotland

  • abandonment (including non-use and acquiescence)

  • destruction of either the benefited or burdened property

  • long negative prescription (ie when it is not used for 20 years) 

  • confusio, ie when the same person becomes the owner of the benefited and burdened properties

What is a public right of way?

A public right of way (or public right of access) is created to give members of the public the right to use a section of your land to travel from one public place to another. In Scotland, there are approximately 7,000 public rights of way, which are recorded in the National Catalogue of Rights of Way.

Is a public right of access different from a servitude?

The two are similar, but there are important differences. With a public right of access, there is a burdened property but no benefitted property.

There are 4 criteria that a public right of access must meet:

  • it must join two public places, such as public roads

  • it must follow more or less a defined route

  • it must have been used by the general public as a matter of right (ie not just with permission from the property owner)

  • it must have been used without substantial interruption for at least 20 years

A public right of way only gives access rights across your property, whereas a servitude can cover lots of different rights.

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