| Ratio | |
|---|
| The test under s6(1)(b)(iv) of the LRSA is what the reasonable person in a property of that type would require, but in exceptional circumstances, an exception could be made | |
| It was okay for a landowner to create a barrier to stop horses getting onto his footpath - horses would have damaged the path | |
| A servitude does not extend to neighbouring land coincidentally owned by the benefited proprietor | |
| Painting above a building is not a servitude | |
| A servitude is impliedly granted if it is necessary for the reasonable enjoyment of the property | |
| Closing a water pipe was successfully argued to be aemulatio vicini | |
| A change in the use of the benefited property is not necessarily an increase in burden | |
| Authorised users of the benefited property may use the servitude | |
| In passage servitudes, a change in the thing passing through is an increase in burden | |
| Attaching a flue was an encroachment, but was permitted out of necessity. It was essential and there was nowhere else to put it | |
| In a case of encroachment, acquiescence creates consent | |
| In cases of nuisance, damages are only available in the instance of fault | |
| A burdened owner can still use his property, but must respect the servitude | |
| At Common Law there is permission to remove a trespasser with as much force as is reasonably necessary | |
| No need for detailed content of the servitude | |
| To create a right of access, acquiescence gives rise to positive prescription. The threshold in an urban area is higher than in the county | |
| Overhanging branches could be an encroachment | |
| Landlocked land servitude cannot negatively prescribe. Rather, this is an inherent right of ownership | |
| When altering common interest, alterations are permitted up until they are measurable and not merely negligible | |
| A deed creating a real burden must contain its terms within the four corners of the deed | |
| Acts ancillary to navigating tidal waters are permitted. Laying moorings is not an ancillary right | |
| The selling of ice creams and refreshments is not 'recreation' when it comes to the foreshore | |
| Encroachment is a delict, and there is no defence that it is trivial | |
| Any member of the public, or the Crown, may enforce public rights to navigate waters | |
| Separate tenements are generally allowed below ground under the conventional rules, but not generally permitted above ground. | |
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