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Servitudes and public rights of way in Scotland

This information only applies in Scotland.

Even though you own a piece of land, you may have to let other people use it or have access to it. This might be to let members of the public cross from one place to another or to let work be carried out to benefit nearby properties. Read this guide to find out more about servitudes and public rights of way.

A servitude gives other people, such as owners of neighbouring properties, rights over your property. The servitude only allows them to use part of the property in a certain way.

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 and the right to take water from a private source.

These are terms used to describe the properties affected by the servitude. The burdened property is the one with the servitude imposed on it. The benefited property, as the name suggests, is the one that benefits from the extra rights, such as access or drainage.

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.

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 the conveyancing process. This can sometimes be complicated as servitudes won’t always appear in the title deeds to the 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.

A public right of way 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 7,000 public rights of way which are recorded in the National Catalogue of Rights of Way.

The two are similar, but there are important differences. With a public right of access, there is a burdened property but no benefitted property. A public right of access can be used by anyone, not just the owner of a nearby property. It has to connect two public places, such as two public roads. Also, a public right of way only gives access rights across your property, whereas a servitude can include lots of different rights.