26.2 Positive servitude

A positive servitude allows the owner of the dominant tenement to do a positive act, e.g. to walk or drive over land owned by the servient tenement. In short, it allows the dominant proprietor to enter upon the servient proprietor’s land to do something positive.

26.3 Negative servitude

A negative servitude allows the owner of the dominant tenement to prevent or restrain the servient proprietor from doing something. The most common example of a negative servitude is that of a servitude of light, which enables the owner of the dominant tenement to prevent the owner of the servient tenement from blocking out light to his or her property.

Since section 79 of the Title Conditions (Scotland) Act 2003 came into force on 28 November 2004 it is no longer competent to create a negative servitude. This means that all servitudes created since that date must be positive in nature. In future, obligations that were formerly created as negative servitudes will have to be created as negative real burdens instead.

26.4 Constitution of a servitude

There are a number of ways that a servitude can be constituted:

1. By Act of Parliament – instances of this are rare. One of the few examples is contained in the Forestry Act 1967. Section 6(2) allows the Forestry Commissioners to create a servitude right of access by order where no formal access exists between a wood or forest and a public road or railway.
   
   
2. Express grant - the usual way this is achieved is by a deed granted by the servient owner in favour of the owner of the dominant tenement. For example, the servitude right could be created in a deed specific for that purpose such as a deed of servitude or a grant of servitude or it could be subsumed in the foundation deed for the dominant tenement, in other words, a feu deed or disposition. Express grant is perhaps the most common mode of constitution. 
   
   
3. Express reservation - this again is created in a deed where the granter reserves to themselves a servitude over the servient property they are selling, usually because such a right is necessary for the seller’s continued enjoyment of the retained or dominant tenement property.
   
   
4. Implied grant - this is an exceptional method by which a servitude can be created, since it means burdening another property as well as benefiting the dominant tenement. This type of servitude happens when the dominant and servient tenements must originally have been possessed together and then subsequently severed. The best example is where there is a house with a large back garden and part of the garden is sold to another who builds a house on it but who must have access to the property over the seller’s land of necessity. In this scenario it would be safer for the seller to have expressly granted a right but that does not always happen.
   
   
5. Prescription - this entails exercising the right during the prescriptive period in terms of the Prescription and Limitation (Scotland) Act 1973, section 3(2). This section provides that where there has been an actual use of a servitude and possession for 20 years, continuously, openly, peaceably and without judicial interruption, then from the expiry of that period the existence of the servitude as so possessed shall be exempt from challenge.

26.5 Common type of servitude

The most common type of servitude the Keeper encounters is a servitude right of way, or access, or free ish or entry. The terms of the servitude once granted should be consistent in a prescriptive progress of title unless something has happened to alter the extent of the servitude. For example, if the terminology used in the grant of servitude refers to a servitude right of access but does not specifically refer to vehicular traffic, the Keeper must reflect in the title sheet only that which is expressed in the grant of servitude. It happens that in subsequent transfers of the interest in land the deed may expand the servitude to include vehicular traffic, but that should not be included in the title sheet unless the grant derives from the proprietor of the servient tenement; a grant of servitude from one dominant tenement proprietor to another must be viewed with caution and the submitting agent should be asked why the servitude has been expanded. It may be that the agent is attempting to create an a non domino servitude (this is discussed below). The agent, in these circumstances, should be informed that the servient proprietor has to make the grant. Only if the servient proprietor cannot be traced after due and diligent enquiry, should an a non domino servitude be entered in the title sheet and then with an exclusion of indemnity note for the prescriptive period of 20 years in the following style (for further information see the chapter on Dispositions a non domino):

• Note: As regards the servitude right of access over the subjects tinted brown on the title plan, indemnity is excluded in terms of section 12(2) of the Land Registration (Scotland) Act 1979 in respect that no evidence of title to grant said servitude right prior to a Disposition by A to B registered … has been produced to the Keeper.

26.6 New Types of Servitude

Traditionally, servitudes in Scotland were restricted to a fixed list of "known" types (access, aqueduct, rights to drainage, support, pasturage, etc.). Section 76(1) of the Title Conditions (Scotland) Act 2003 which came into force on 28 November 2004 removed the fixed list in respect of servitudes created by express provision and dual registration in terms of section 75(1) of that Act. Since the 2003 Act came into force it has therefore been possible for solicitors to create new rights as servitudes by express grant or express reservation and some examples of these new types of servitudes are given below. However, the fixed list continues to apply for servitudes that are not created by registered deed (such as by positive prescription or implication in a deed). (see Constitution of a servitude)

Even without the former fixed list, a number of limitations will continue to apply to restrict the creation of new rights as servitudes. As mentioned above it is now only possible to create positive servitudes (see Negative Servitudes) and, as is the case with real burdens, a servitude must burden one property for the benefit of another property. However, section 75(2) of the 2003 Act provides that it is possible for a person, for example a developer using a deed of conditions, to be the owner of both the burdened and benefited property at the time of registration. This does not affect the validity of the positive servitude at the time when the deed was registered; but registration officers should be aware that the servitude does not come into existence until the properties are in separate ownership. Only once the benefited property is transferred to separate ownership will the servitude be disclosed in the property section of the title sheet for that property.

In addition, a further limitation on the creation of new positive servitudes is found at section 76(2) of the 2003 Act which states that it is not permissible to create a servitude that is repugnant with ownership. The 2003 Act does not define what is meant by this phrase and the case law has yet to develop in relation to new types of servitude. However, there is some helpful discussion to be found in the Scottish Law Commission's Report on Real Burdens (Scot Law Com No 181), which contained an early draft of what was later to become the Title Conditions (Scotland) Act 2003. In making their proposal for what was to become section 76(2) of the 2003 Act, the Scottish Law Commission made the following observation: "An obligation is not recognised as a real burden if it is repugnant with ownership, that is to say, if it is so extensive as to encroach on ownership to an unacceptable extent. The point, at which the line might be crossed, in relation to servitudes, would be a matter for judicial discretion. A right of transitory use, such as a right of way, is clearly acceptable. So is a right to place an object, such as a pipe on the property. But a right of permanent and exclusive use would create a repugnancy and would not be permitted." The Report continues by saying "a number of rights currently regarded as marginal candidates for servitudes - parking for example or the right to place a ladder or scaffolding for repairs - will now clearly be allowed."

Whilst the Keeper will not exclude indemnity in respect of a new type of servitude that is otherwise properly constituted, there may be occasions on which registration officers consider that it is appropriate to exclude indemnity on the grounds that the right in question is repugnant with ownership. Such cases should be referred through the usual channels to Legal Services.

For the avoidance of doubt, examples of new servitudes that are acceptable for inclusion in title sheets are servitude rights

• to use car parking spaces/of parking
• to have a stockproof fence erected around a house
• of overhang

26.7 Keeper’s current policy

The Keeper’s current policy on servitudes appearing in title sheets in the Land Register can be summed up as follows:

It is appropriate to enter a servitude right in the title sheet of the proprietor of the dominant tenement if:

1. The right has been constituted by formal grant by the proprietor of the servient tenement, i.e. deed of servitude/disposition etc.; 
2. The right has been reserved to the dominant tenement in a conveyance of the servient tenement (however, this right is entered in the burdens section only); 
3. A court decree is produced, declaring that a servitude right exists; or 
4. The right has been constituted by statute.

A servitude should not be entered in a title sheet if it is being granted by a tenant over their remaining leasehold interest.

26.8 The rationale

The policy does not include servitudes created by prescriptive possession or implied grant. What in effect this means is that the Keeper will not normally enter in the register a servitude right that has allegedly been created by prescriptive possession or implied grant. The reason for this course of action is simple. For example, a servitude right appears in the deed inducing registration in an application for first registration, but the prescriptive progress of deeds submitted for registration shows that the seller, i.e. the proprietor of the dominant tenement, does not have a valid title to the servitude right. In such cases the Keeper used to make further enquiries of the agent. Agents would be asked for evidence that the servitude had been created and that their client had a right over it. Invariably the reply would be that the right had either been necessary by implication or, more typically, it had been acquired through prescriptive possession for the 20 year period. The agents would submit affidavits from people who lived in the area saying that the right had existed and been exercised for the prescriptive period. These people might be friends, relatives, neighbours, but clearly this evidence represents only one side of events.

What then frequently happened was that, after the Keeper had entered the right in the title sheet, either with or without an exclusion of indemnity, he would receive contrary evidence from the proprietors of the servient tenement that it was not the case that any such servitude existed. Who then does he believe? The Keeper does not have judicial powers and cannot determine what is the true position. If the Keeper simply stepped back and allowed the matter to be resolved between the parties, that might be considered unfair on the servient owner who has not been given the opportunity prior to registration to state his or her case. There is the prospect of the Keeper becoming involved in litigation in a matter where he has been responsible for putting the servient proprietor in a disadvantageous position. This type of scenario places the Keeper in the middle of a dispute that he has no power to resolve. Quite apart from the potential for indemnity claims to be made by the proprietor of the servient tenement, there is the issue of whether the Keeper’s policy of relying on one side’s argument is a reasonable exercise of his discretion when compiling a title sheet.

Legal registration officers should take the view that the onus of establishing that a servitude right has been properly constituted should fall to the person seeking to have the constitution declared. Where the owner of the servient tenement is known, the Keeper’s view is that the proper way to proceed is for there to be a formal grant of servitude by the owner of the servient tenement.

26.9 Servitudes for Fixed Periods

There is opinion that not all servitudes will, or need be perpetual.

Professor's Cusine and Paisley state in Servitudes and Rights of Way (1998) (at 2.89):

"Does a servitude require to be a permanent right? In our view, the answer is "no". We accept, as we must, that in such cases, if the agreement is not reduced to writing in clear terms it may be difficult to distinguish a temporary servitude from a mere contractual licence, but that does not affect the principle that a servitude need not, in every case, be something of a perpetual nature."

The issue of whether a right is a real right running with the land or is a personal right to the contracting parties will require to be dealt with on a case by case basis. The Keeper is obliged to register the deed if the rights and conditions have been validly constituted as a servitude and the deed is not, in fact, a contractual licence between the parties. A contractual licence, personal to the parties to it, is not a document that would fall to be registered.

If a deed, purporting to be a deed granting servitude rights, includes a specific condition regarding either; (1) the duration of the servitude for a fixed period; or (2) the endurance of the right until the happening of a certain event (including termination by the parties), the deed should be referred to a senior caseworker, in ALL circumstances, for consideration as to its suitability for registration. If doubt remains regarding the suitability of the deed for registration the case should be referred to Legal Services. For deeds falling within category 7 below a referral must be made to Legal Services.

A number of points should be considered when assessing whether the deed should be accepted for registration:

1. Has the deed been validly constituted? In order to disclose the existence of a servitude right in the title sheet, the Keeper, on registration, must be satisfied that the servitude has been validly constituted. In terms of S12(3)(l), the Keeper will not indemnify the proprietor of the benefited property if the servitude subsequently turns out to be unenforceable.
2. (a) Is there evidence, within or outwith the deed, that suggests that the parties to the deed intend the right to "run with the lands"?
   (b) Is there reference to the right being "heritable and irredeemable"? The use of the above words implies perpetuity and the fact the right is intended to run with the land. Extraneous evidence may also support such a conclusion.
   (c) Do the parties intend to bind singular successors and do they use the expression "successors"?
   
   None of these points may be viewed as essential to create a servitude but may offer guidance as to the nature of the grant in question.
    
3. Is the word "servitude" used? This is not an essential to the grant of servitude but again may give an indication as to the parties intention.
    
4. What period is set for the fixed term? Again, so as to give an indication as to intention.
   
   
5. Is there an ongoing element to the purported servitude i.e. is there a permanent nature to the right? For example, an obligation to maintain and repair may suggest a continuing element to the grant, whereas, access to connect to a pipe with no further provisions as to maintenance and repair is a one off event and may suggest the grant is in fact a contractual licence?
   
   
6. Is the deed in question bi-lateral (i.e. executed by both parties)? If the deed is bi-lateral then it could be said to be clearly expressive of both parties intentions and that there is a clear indication that they wish to be bound by its terms. Thus, if the deed purports to be a servitude and if, for example, the word 'servitude' is used then the creation of a servitude right, it would appear, is what is intended.
   
   
7. Does the right itself fall within the historic category of servitudes recognised prior to the abolition of the feudal system? While new servitude rights outwith these categories may be created after the appointed day any fixed period grant relating to a new category of servitude must be referred to Legal Services.
   
   
8. Is the clause containing the endurance of the right or the provision regarding its expiry after a fixed period or on the happening of a certain event clearly drafted in the form of a conventional servitude condition?

While the above matters are not conclusive in determining whether a servitude for a fixed period should be registered in the Property section with no exclusion of indemnity, they may offer some guidance as to what matters may assist in determining whether the grant relates to a servitude or a contractual licence. Each case should be decided on its own facts and merits and it is reiterated that ALL cases should be referred to a senior caseworker. If doubt still remains after consideration by a senior caseworker then the matter should be referred to Legal Services.

If a deed is accepted for registration and the servitude is specifically set out in the property section the following note should be added:

Note: The above right [give details sufficient to identify the right; e.g. reference to clause number or narrative of right] contains a time limit indicating that the right will expire on [details of period; e.g. date].

If the property section contains a general cross-reference to the rights contained in a deed in the burdens section no additional note will be required in the property section. Details of the restriction on the duration must be included in the text of the entry and the following note should be added after the relevant burden deed entry:

Note: The right specified in clause XX of the above deed contains a time limit indicating that the right will expire on….

The note can be removed once the fixed period during which the servitude is said to exist has clearly expired. Reference to a senior caseworker should be made for authority to remove the right in ALL circumstances. In the event of doubt the case should be referred to Legal Services.

26.10 A non domino servitudes

All applications seeking to register a servitude which is a non domino in nature should be referred to Legal Services who will make the decision as to whether the application can proceed to be registered or whether it should be cancelled.

When a dominant tenement proprietor who does not have a servitude right deriving from the servient owner in the deeds, tries to establish the identity of the servient owner but cannot, despite making investigation, the Keeper will include a servitude right in the title sheet on an a non domino basis. That of course will be subject to an exclusion of indemnity for 20 years. Where the servient owner can be identified, the Keeper will not accept an a non domino grant of servitude. His practice is to ask why a formal approach to the servient owner is not being made with a view to obtaining a formal grant.

On a practical level, when a servitude right is encountered in the process of registration, consideration should only be given to granting full indemnity where title to it derives from either the servient tenement or from an a non domino grant which has been fortified by 20 years’ possession. In the latter case evidence of possession will have to be examined

26.11 Keeper’s statutory duty

Turning to the Land Registration (Scotland) Act 1979, it is important to look at the Keeper’s duties in the context of servitudes. The Keeper’s duty in compiling a title sheet is to be found at section 6(1)(e) where he is required to enter in the title sheet ‘any enforceable real right pertaining to the interest’. This of course requires the Keeper to enter a servitude right irrespective of the method of constitution, but the reality is that he will do this only when he is satisfied that the right has been properly constituted. A leaseholder cannot create a servitude right. Clearly, if the Keeper is not satisfied that the right has been properly constituted he must also have concerns about its enforceability. By entering a right without exclusion of indemnity, the Keeper guarantees that the right is subsisting and enforceable. Therefore the Keeper will always require evidence that the right has been validly constituted. The question then is what evidence will be sufficient to persuade him to enter the right in the title sheet. See also Leasehold Interests — Property Section

Section 4(1) of the 1979 Act provides that ‘an application for registration shall be accepted by the Keeper if it is accompanied by such documents and other evidence as he may require’. In effect, this provision authorises the Keeper to set the standard of evidence required and what is needed is either a formal grant in a deed or a court decree declaring the existence of the servitude and the right. Anything less is unacceptable as evidence. The Act in the Keeper’s opinion already provides for the scenario where servitude rights exist but not expressly.

Section 3(1)(a) narrates as follows ‘registration shall have the effect of vesting in the person registered as entitled to the registered interest in land a real right in and to the interest and to any right pertinent or servitude express or implied, forming part of the interest’. This is the key provision when considering if the Keeper is under a duty to enter in the title sheet servitudes constituted by prescriptive possession or implied grant. The Keeper considers the effect of this provision is that a servitude which is properly constituted, but not by formal grant or reservation, is included in the property passing from one proprietor to another but without express mention. So, it runs with the land even although it is not entered in the title sheet of that interest. Unsurprisingly, solicitors do not like it when this is explained to them; what they want is for the right to appear in the title sheet and for the Keeper to take the risks associated with entering the right.

26.12 Noting of public rights of way

The Scottish Rights of Way Society Limited is an incorporated body which has a long history of interest in public rights of way in Scotland, going back in one form or another to the 1840s. Agency policy on applications for noting a public right of way is as follows:• In terms of section 28(1) of the Land Registration (Scotland) Act 1979, the right of a member of the public in respect of any public right of way is an overriding interest over any interest in land. Section 6(4) of the 1979 Act and rule 13 of the Land Registration (Scotland) Rules 1980, provide for the noting of overriding interests (or their discharge) on the appropriate title sheet. The Keeper is prepared to accept an application for the noting of a public right of way from the Society because the courts have accepted that the Society has a right to sue regarding the maintenance and defence of public rights of way.

• Noting is distinct from registration and it follows that the noting of any overriding interest on a title sheet does not change the quality of the right so noted. The purpose and effect of noting is publication, no more and no less. The Keeper’s role is restricted to publicising, by noting in the Register, public rights of way whose existence has already been established.

26.13 Evidence required for noting

Evidence must adequately define the route and it must show, to the Keeper’s satisfaction, that the right of way is established.

 26.13.1 Definition of route

The route must be identified so as to enable the Keeper to plot it on the title plan of the affected land at whatever scale is in use for the title plan. A clear line of route shown on a plan is, therefore, normally required. A statement that there is a path between points A and B will not suffice, unless the route is identified by a physical feature on the ordnance map.

 26.13.2 Evidence that public right of way is established

While the Keeper will be prepared to place reliance upon an affidavit in suitable terms granted by an official of the Society, he will not be prepared to arbitrate on complex and conflicting evidence.

The possibility cannot be excluded that the Keeper might be faced with opposing applications, one for the noting of a right of way and the other for the removal of the note. If such a situation arose, the Keeper would not allow himself to be drawn in to any dispute. A court declarator would appear to be the only means of resolving the issue.

Applications from individual members of the public, unsupported by a court declarator or other conclusive evidence, raise different considerations and any such application should be referred through line management to Legal Services.