Scots Property Law (2) Cases

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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
Aemulatio Vicini - 16 foot wall did not count
Consent for an encroachment may transmit to a successive owner, provided they got notice or constructive notice of the encroachment
Encroachment is a delict, and there is no defence that it is trivial
Liability for damages in trespass is not strict
In passage servitudes, a change in the thing passing through is an increase in burden
Painting above a building is not a servitude
Not essential to use the word 'servitude' to create one
The greater the use made of a servitude, the less likely that this was merely 'tolerance'
Closing a water pipe was successfully argued to be aemulatio vicini
Attaching a flue was an encroachment, but was permitted out of necessity. It was essential and there was nowhere else to put it
Authorised users of the benefited property may use the servitude
When applying rules of scheme majority, you look at the ownership situation at that point in time
Whether increased use is an increase in burden is to be assessed case by case
A servitude of overhang was recognised
Damages may be available for an encroachment which is not readily removable. The damages must be quantifiable
In practice, an additional piece of land as a pertinent needs to be fortified by right by positive prescription
In cases of nuisance, damages are only available in the instance of fault
Landlocked land servitude cannot negatively prescribe. Rather, this is an inherent right of ownership
A burdened owner can still use his property, but must respect the servitude
A servitude of parking is competent
The best evidence of future trespass is previous tresspass
Overhanging branches could be an encroachment
Servitudes must confer a praedial benefit
A servitude does not extend to neighbouring land coincidentally owned by the benefited proprietor
Ratio
There is an obligation to refrain from interfering with non-tidal waters and their natural flow
To create a right of access, acquiescence gives rise to positive prescription. The threshold in an urban area is higher than in the county
Cycling is an accessory to the right to walk. Driving is not and extension of cycling
In a case of encroachment, acquiescence creates consent
Hanging a sign is not a servitude recognised by law
Acts ancillary to navigating tidal waters are permitted. Laying moorings is not an ancillary right
No need for detailed content of the servitude
Maintained that the test of a reasonable person under the LRSA is an objective one, and the court shouldn't account for the person's own situation
Where there is a common interest obligation, one party can carry out maintenance and recover the cost from the other party/parties
When support/shelter fails, then damages are only available to the damaged property in the instance of culpa
When altering common interest, alterations are permitted up until they are measurable and not merely negligible
Servitude is only implied in the event of utter necessity
Waters around the Shetlands are not Udal - way
Separate tenements are generally allowed below ground under the conventional rules, but not generally permitted above ground.
To impliedly grant a servitude there must be a quasi servitude at the time of severance
Burdens of pre-emption must be construed strictly
The selling of ice creams and refreshments is not 'recreation' when it comes to the foreshore
A change in the use of the benefited property is not necessarily an increase in burden
A deed creating a real burden must contain its terms within the four corners of the deed
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 can be created by acquiescence - in this case, watching them lay a pipelin
Any member of the public, or the Crown, may enforce public rights to navigate waters
A servitude is impliedly granted if it is necessary for the reasonable enjoyment of the property
At Common Law there is permission to remove a trespasser with as much force as is reasonably necessary
It is not possible to interdict animals for trespass, unless the animal is of a type easily contained

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