Scots Property Law (2) Cases

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

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Created Apr 11, 2011ReportNominate
Tags:case, law, property, ratio, scotland