Law of Servitudes

22 February 2011

Brian Inkster today gave a lecture on the Law of Servitudes to the Conveyancing class at the Law School of the University of Strathclyde

The lecture covered:-

  • the essentials of servitudes
  • the 'fixed list'
  • adding to the fixed list
  • creation of servitudes
  • checking for servitudes
  • the rights and obligations of the benefited proprietors
  • the rights and obligations of the burdened proprietors
  • extinction of servitudes
  • rights that are similar to servitudes

This is the third year that Brian has lectured on the Law of Servitudes at the University of Strathclyde. There have been a number of developments on the law of servitudes over the past year and Brian was able to highlight these to this year's students. In particular:-

Parkin v Kennedy 23 March 2010, Lands Tribunal - The wording “a servitude right of way along a passage known as Back Road” in the context of the Disposition as a whole suggested to the Lands Tribunal the existence of a right of access for vehicles.

Brian also alerted the students to an unreported case from 2004 which only came to the attention of Kenneth Reid and George Gretton in 2010:-

Pullar v Gauldie 25 August 2004, Arbroath Sheriff Court - A servitude established by express reservation in a split-off disposition but not exercised for the next five years was not abandoned. Intention is a prerequisite of abandonment. There was no evidence of intention in this case as it was the actions of the burdened owner (extending a bothy and erecting a fence with a locked gate) that had prevented access by the benefited owner rather than the benefited owner having intentionally abandoned the right.

Next week Brian Inkster will give the Conveyancing students at the Law School of the University of Strathclyde his lecture on Moncrieff v Jamieson which illustrates many of the points considered in today's lecture.

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