| Ratio | |
|---|
| In cases of nuisance, damages are only available in the instance of fault | |
| 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 | |
| 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 | |
| A servitude of parking is competent | |
| A deed creating a real burden must contain its terms within the four corners of the deed | |
| Not essential to use the word 'servitude' to create one | |
| Acts ancillary to navigating tidal waters are permitted. Laying moorings is not an ancillary right | |
| Consent for an encroachment may transmit to a successive owner, provided they got notice or constructive notice of the encroachment | |
| When altering common interest, alterations are permitted up until they are measurable and not merely negligible | |
| Liability for damages in trespass is not strict | |
| Where there is a common interest obligation, one party can carry out maintenance and recover the cost from the other party/parties | |
| Whether increased use is an increase in burden is to be assessed case by case | |
| It was okay for a landowner to create a barrier to stop horses getting onto his footpath - horses would have damaged the path | |
| Servitude is only implied in the event of utter necessity | |
| 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 | |
| Attaching a flue was an encroachment, but was permitted out of necessity. It was essential and there was nowhere else to put it | |
| When support/shelter fails, then damages are only available to the damaged property in the instance of culpa | |
| A servitude is impliedly granted if it is necessary for the reasonable enjoyment of the property | |
| Servitudes must confer a praedial benefit | |
| The greater the use made of a servitude, the less likely that this was merely 'tolerance' | |
| No need for detailed content of the servitude | |
| Separate tenements are generally allowed below ground under the conventional rules, but not generally permitted above ground. | |
| In practice, an additional piece of land as a pertinent needs to be fortified by right by positive prescription | |
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