Introduction

Broadly speaking a servitude is a right which one landowner has for the benefit of his own land over the land of an adjoining owner who is obliged to submit to the enjoyment of such a right.

The type of servitude with which Plans Staff are most frequently concerned is the right of way. Other types of servitude such as rights of drainage can also affect plans work, but some servitudes will not affect mapping work at all.

The main characteristics of a servitude are: -

(a) There must be two tenements involved - dominant and servient.

(b) The two tenements must be in different ownership.

(d) It is a privilege "without profit" i.e. the dominant owner is now allowed to remove any part of the servient land or its produce.

(e) It must be capable of forming the subject matter of a grant i.e. it must not be too vague or indefinite.

Servitudes recognised by the institutional writers can be grouped under the heading of Urban and Rural servitudes. The third of the Urban servitudes is negative: the others are all positive servitudes. They are as follows: -

(a) URBAN SERVITUDES - These Are Support, Stillicide, And Light Or Prospect.

(i.) Support includes servitudes known as Tigni Immittendi and Oneris Ferendi. The former is the right to let a beam or other structural part of the dominant building into the wall of the servient tenement and to keep it there; the second is the right to have a building supported.

(ii.) Stillicide or Eavesdrop. No proprietor can build so as to throw rainwater falling from his own house immediately upon his neighbour's ground, but this servitude entitles him to do so.

(iii.) Light or Prospect. The negative servitudes Non Aediicandi, Altuis non Tollendi, et non Afficiendi Luminibus restrain proprietors from building on their ground, or from raising their buildings beyond a certain height, or from building so as to hurt the light or prospect of the dominant tenement. There is another form of servitude of light which prevents windows and other openings which would interfere with a neighbour's privacy being made in the servient tenement. Such servitudes can be constituted only by grant or agreement.

(b) RURAL SERVITUDES - These include Way, Aqueduct, Aquaehaustus, Pasturage and Feul, Feal and Divot.

(i.) Way. The way may be a footpath, a horse road or a carriage or vehicle road. The owner of the servient tenement is not bound to repair the road, and he may erect gates so long as they do not interfere with the enjoyment of the servitude. Alteration of its line is not possible where the servitude has been constituted by a grant in which the line of road has been laid down.

(ii.) Aquaehaustus gives the right to take water from or to water cattle at a well or stream in the servient tenement. It involves the right of access by the dominant owner and a right to clean out or repair the well. This right is more often required by usage rather than by an express grant.

(iii.) Aqueduct is the right to convey water by pipes or canals through the servient tenement. A similar servitude is that of a dam or damhead by which one acquires a right of gathering water on his neighbour's land and of building banks or dykes for containing the water.

(iv.) Pasturage is the right to feed cattle or sheep on another's ground or on a common. It is usually a right enjoyed in common with others. If the extent of the right is not defined it is the amount of stock the servient tenement can winter.

(v.) Fuel, Feal and Divot is a servitude which gives the right to cut and remove peat for fuel.

Table of Contents

8.9.1 Public Right Of Way

This differs from the servitude of way in that it exists for the benefit of the public and may be vindicated by a member of the public. A servitude of way, on the other hand, is for the use and benefit of the dominant tenement alone.

A public right of way is a right in the public to pass from one public place to another public place, and the road must be a definite track.

8.9.2 How Servitudes May Be Acquired

By an express grant either in gremio of a deed such as a Disposition or Conveyance or by a separate Deed of Servitude or Grant of Servitude. Generally speaking Plans Staff are concerned mainly with express grants.

By implied grant, where two tenements have been in one ownership and the owner disponed one or both of them. Then a servitude over one of the tenements may be (a) absolutely necessary to the enjoyment of the other, e.g. a servitude of support or a servitude right of access if one of the tenements does not abut on a public road or (b) necessary for the convenient and comfortable enjoyment of the other, e.g. a Servitude for drainage or of water supply if the pipes were through one of the tenements prior to separation and remained after separation.

8.9.3 Entry On The Title Sheet

A servitude so far as the servient tenement is concerned is an overriding interest and may never be noted on the Title Sheet for the servient tenement. The servitude so far as the dominant tenement is concerned is a registrable interest.

For Departmental purposes "specific servitudes" will include the following rights: -

(a) The right of way over land which does not comprise a passageway at the back of house plots on a developed or developing estate.

(b) The right to use drains, the line of which is shown on the plan to the deed.

(d) The right to use pipe lines leading to oil storage tanks.

(e) The right to take hot or cold water through defined private pipe lines.

(f) and any other specific rights of a similar nature.

All rights granted in conveyances, dispositions and transfer of shop, commercial or industrial premises or parts of converted houses (split villas) and those granted to gas and electricity boards (e.g. in the registration of sub-stations) must always be treated as "specific servitudes".

Plans staff will supply either verbal or plans references for servitudes for entry on the Title Sheet depending on whether or not the servitude is shown on a deed plan.

In exceptional circumstances dimensions shown on the deed plan to govern the extent of the right of way should be similarly shown on the Title Plan. It is not possible to state when and where this should be done other than to stress that inclusion must be because of a sound significant reason. The practice is extremely rare, and referral should always be exercised if dimensions are thought necessary.

On the registration of large estates it sometimes occurs that rights of way are granted over bridle paths, tracks and footpaths, through woodland or across or around pasture and a plan reference is necessary. To include in a Title Plan an area sufficient to cover the land affected may mean a very much larger plan than would otherwise be needed. For guidance in such circumstances the plans officer may consider the use of a supplementary plan on a smaller scale (e.g. 1/2500 or even 1/10,000) to provide for the reference.

Where possible, the preparation of a plan of sufficient size to accommodate the reference would be preferred.

In providing references for rights of way narrated in any new deed submitted for registration, care must be taken to see that a reference is not supplied for a right which is not capable of being exercised e.g. over a passageway which does not exist or a passageway which appears to have been blocked-up, perhaps by a garage, or fenced off. The discrepancy will usually need to be referred to an appropriate senior officer for advice and the Legal Settler should always be kept informed. This will apply equally whether a plans or verbal reference is under consideration.

The Legal Settler should be informed whether or not the land over which any servitudes have been granted is already registered (servient tenement) and if so, the Title numbers and any applicable references on the Title Plans should be intimated.

However, if a servitude or right of way granted and shown on a plan annexed to a prior recorded deed is found to run through a solid feature, for example a garage or a property extension such as a conservatory, the plans officer should reflect the full extent of the servitude as granted in the deed. There is no requirement for the plans officer to contact the agent regarding this. A note should however be added in the Title Notes and Instructions advising the legal settler that part of the servitude granted in the deed does not appear to be exercisable.

e.g. The right of access coloured blue on plan to deed 1 has been tinted blue on the Title Plan. Part of this route passes through an extension and therefore does not appear to be being exercised.

8.9.4 Rights Of A Trivial Or Obvious Nature

Some examples of such rights are: -

(a) Rights of way over adopted roadways.

(b) Rights of drainage that are undefined (or ill defined and vague) on the deed plans.

(c) Rights granted by a developer over estate roads (or through drains under estate roads) where the roads are shown as defined on the Title Plan.

When applications refer to servitudes falling in this category it is not necessary for Plans Staff either to report to Legal Staff as to whether the land over which the servitude passes is registered or not, or to give plans or verbal references for the servitudes. A note should be made to the examiner explaining the reason for the plans action.

8.9.5 Servitude Problems

Servitude Problems - no longer applicable - see section 8.9.3 and registration practice memo - servitudes dated 19.12.12

8.9.6 Referencing of Rights of Wayleave And Burdens For Sewers Etc.

8.9.6.1 Line of drain etc. as a RIGHT

Indemnity is no longer excluded as regards rights to lines of drains, cables etc; instead, it is made clear that it is the intended line and not the actual line of pipe or cable etc. that is shown on the Title Plan.

Wherever possible, the line should be plotted on the Title Plan, but should the plotting be complex or should other difficulties arise, consideration can be given to producing a Supplementary Plan. (See below).

Remember that when the line to be referenced is a right in favour of the subjects being registered, the whole line outwith the subjects is required to be shown. The text of the deed needs to be considered as the right may be explicitly narrated as being over the retained / burdened property and therefore should only be shown so far as lying outwith the subjects, even though the deed plan may show the line extending into the subjects. The line(s) should be SET EXT in the DMS so that they are visible on the Index Map, in order that it can be referenced on the burdened property when that title is registered.

8.9.6.2 Line of drain etc. as a BURDEN

The Keeper does not guarantee the accuracy of burdens in any Land Certificate issued, he only guarantees that all affecting burdens are included. The line of the pipe or cable etc. should be plotted on to the Title Plan from the information supplied in the deed(s). This should be feasible in most instances: in the event of difficulties, a supplementary plan may be used. (See below).

Remember that as a burden on the land being registered, the line is only shown as far as it effects the subjects, unless the wording in the deed refers to a line as burden and a right where it traverses the subjects and extends outwith, and may therefore be edited in by the legal settler in the same terms in which case one reference for the whole line will be required. Remember that the line should be SET EXT in the DMS so that it is visible on the Index Map, and therefore when the benefited property is registered the line can be brought forward onto the Title Plan to prevent any inconsistencies in the plotting of the line.

8.9.6.3 Supplementary Plans (where relevant original deed plan is lodged).

When a reference is required and the original plan is available and it would be less than cost effective to reproduce the reference on a Title Plan and/or the plotting is complex and accuracy becomes difficult, the use of a Supplementary Plan is preferable. The decision to use supplementary plans lies firmly with Plans Staff: any doubts as to the suitability or desirability of the method should be referred to the technical referee.

The supplementary plan should be prepared in the usual manner ensuring that : -

(i.) the detail shown on the deed plan can be related to the detail on the Title Plan, and

(ii.) the Legal Settler is informed that the Supplementary Plan is a copy of the deed plan.

8.9.6.4 Supplementary Plans (where relevant deed plan is not lodged).

There will be a number of cases where the original deed plan is not submitted with the application and in these cases verbal references will be given unless it is totally impossible to do so without doing violence to the text and the effect of the deed.

The decision as to whether or not verbalisation is possible must rest with Legal Settling Staff but any decision that it is NOT possible must be authorised by the appropriate senior officer who, if necessary, will consult with Plans Staff. If such a decision is taken and the original deed has been recorded in the Books of C and S [Council and Session], the case must be returned to plans section with an instruction that the original deed must be obtained from the Record Office.

A reference or references cannot be given because of

(i.) no plan lodged with the documents; or
(ii.) the plan is of such poor quality (bad copy); or
(iii.) the plan is a monochrome copy of a multi-coloured plan; and subsequently:
(iv.) it is found that the deed was not recorded in the Books of C and S: and
(v.) the solicitor cannot supply it or a certified copy

Then mapping will proceed without the references so affected and the Legal Settler informed accordingly.

The Legal Settler will insert the relevant text from the deed that refers to the rights into the Land Certificate, adding a note to the effect that the various rights have not been referenced on the Title Plan as the original deed plan has not been produced to the Keeper.

8.9.7 Public Rights Of Way

In terms of Section 28(1)(g) of the Land Registration (Scotland) Act 1979, the right of a member of the public in respect of any Public Right of Way is, in relation to any interest in land, an overriding interest over it. Section 6(4) of the Act and Rule 13 of the Land Registration (Scotland) Rules 1980 provide for the noting of overriding interest on the appropriate Title Sheet.

The Scottish Rights of Way Society Ltd is an incorporated body which has a long history of interest in Public Rights of Way going back in one form or another to 1840. The Society has recently requested, and received, clarification as to the noting of such overriding interests on Title Sheets. This may, or may not, mean that requests for such noting will increase, but this section intends to set out the criteria for the referencing of such rights on a Title Plan.

In the first instance, on application which includes documents relating to a Right of Way burdening the land should be referred to the Legal Examiner where the points covered below appear to have been met. The Legal Examiner will then confirm whether or not a plan reference can be given. If the points are clearly not met, the application may proceed without prior reference, drawing Legal Staff's notice to the matter. Obviously any doubtful cases will be referred anyway. The request for noting a Public Right of Way on an existing Title Sheet will be received as a Dealing (using Form 5) and will be passed to Plans if it is considered that a reference should be given (subject to it being identifiable on the Ordnance Map).

The nature and quality of evidence required for the noting of a Public Right of Way falls into two main categories: -

(a) Definition of Route.

The location and route of the right of way must be clearly defined on a plan and subsequently capable of being plotted on to the Title Plan of the affected land at whatever scale the said Title Plan has been mapped. A mere statement that there is a path or track "between points A and B on the plan" will not usually suffice unless the route between the points so marked is identified by reference to a physical feature shown on the Ordnance Map.

(b) Established Evidence.

If the existence of the right of way has been vindicated by a Court Declarator, entered on a local authority register or is the subject of an agreement with the proprietor of the land, the Keeper will normally accept an extract or copy of the relevant documentary evidence as sufficient. Failing this evidence, consideration may be given to a sworn affidavit by the above mentioned Society or, indeed, by any member of the Public. Any application for a noting of a Public Right of Way supported only by an affidavit must be referred to the Legal Examiner. Such an instance, however, would most likely be lodged as a dealing over registered land and therefore be considered initially by the Legal Examiner, but attached dealings to First Registration applications may occur.

N.B. Just as points of interest, the three main criteria for establishing a Public Right of Way are (i) permission by the landowner has not been given (permission does not constitute a right); (ii) the starting and finishing points of the path, track etc. must abut public land (e.g. a road); and (iii) that prescription has run for twenty years.

The Agency's position in such matters is thus: the Keeper is obliged only to note an overriding interest on the Title Sheet, the purpose and effect of so doing is publication, no more and no less. As regards Public Rights of Way, he is only noting on the Register those whose existence has already been established. Any dispute revealed by opposing applications, one for the noting of a right of way and the other for the removal of the note will probably be referred to a Court Declarator for resolving.

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