Scots Property Law (2) Cases

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

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