INTRODUCTION

The creation of servitude by implication is a wide topic. In theory, a distinction can be made between two main types of implication. First, an assertion that a servitude is created by an implication arising from the terms of a deed containing something less than an express or specific reservation for grant of the right and, secondly, an assertion that a servitude is created by an implication arising not from the terms of a deed but from extrinsic facts and circumstances. The former type of implication will be examined below. A further, subsidiary, type of implication is that of a servitude as a subsidiary right which is necessarily inherent in another servitude right, on the basis that the former is necessary to render the latter effectual.

The distinction between the two main types of implication is often obscured. They are as follows:

·        A party who claims that a servitude rises by virtue of implication of has recourse to arguments based on both main types of implication.

·        Where a servitude is claimed to be created by implication arising from the terms of a deed, the quotes of fun take the view that they can determine whether the wording employed does give rise to the appropriate implication only by having regard to the surrounding facts and circumstances.

For example, the titles of a tenement may require the proprietor to maintain a boundary wall but the proprietor may be able to demonstrate that such and obligation implies servitude right of excess to the wall over the adjacent property, only if there is no alternative route for access located within his property. As a result proof for proof before answer is frequently permitted in such cases.

CONSTRUCTION

Creation of a positive servitude by implication from the terms of a deed is recognised by a statute. An assertion that is servitude is created by an implication arising from the terms of deed, containing something less than an Express for specific reservation or grant of the right, is an issue of construction of a deed. Implication must always seed to express provision. If a deed expressly excludes the creation of servitude by implication, that will settle the matter. The issue of implication of a servitude from the terms of a deed will therefore rice only where the deed is silent or at least ambiguous on the matter. It is unknown in practice for a deed expressly to confirm that celebrities may be created by implication from which terms, although this is theoretically possible.

The creation of servitudes by implication from the terms of a deed has been stated to run contrary to the general principle that presumption of freedom lies in favour of the owner of the alleged servient tenement. Certain statements of the institutional writers and dicta handed down in reported cases appear to be sufficiently broad to exclude the possibility altogether. For example, Erskine stated: As all servitude are restraints on property, they are, strictijuris, and so not to be inferred by implication. Similarly, in Russell vs Cowper, Lord Mure applied what he termed “the well-known rule of law” to dismiss.

Applied what he term the well-known rule of law to dismiss a claim that a negative servitude existed when he opined : ” a restriction on a right of property cannot be implied, but must be clearly and unequivocally expressed”. This formulation does not fit particularly well with Lord Mure’s acceptance in the same case that where the terms of a deed are unclear in relation to a servitude, reference may be made to the usage following their own to clarify the matter.

Whilst this formulation of the rule may be accurate in relation to real burdens, where “no fetters are to be raised by implication”, thus stated,  it is too widely expressed in relation to servitudes. In Russell vs Cowper, Lord Deas also give his view of the rule in relation to servitudes and expressed it in the following terms: “Where a person has the right of property of an heritable subject… Any restriction on that right requires to be distinctly expressed, and is certainly not to be lightly implied.” there is a subtle, but important, difference between the approach of Lord MureabdDeas. The latter appears to have accepted that a servitude can be created where the relevant deed contains an express statement, or a clear implication, whilst the former seems to acknowledge only express statement as a valid method to create servitudes. Modern Scots law has clearly adopted the approach of Lord Deas. Furthermore, the law has developed beyond even that position. Where it is unclear whether a deed does contain the appropriate implication, it is now accepted that reference maybe made to the surrounding circumstances to clarify the issue.

NEGATIVE SERVITUDES

In relation to negative servitudes, however, one can detect a slightly stricter approach which resembles closely the approach applied to real burdens. There are few reported cases in which the courts have upheld a claim that a negative servitude has been created by implication from the terms of a deed. A rare example is MacGregorvs North British Railway where the court examined the terms of a feu character of the dominant tenement which contained a clause obliging the superior to maintain adjacent lands owned by him (comprising East Princes street Gardens in Edinburgh) as a pleasure ground in all time coming. The code felt able to recognise a servitude of prospect in favour of the dominium utile of the feu as being implied in the terms of this clause. This case, however, is peculiar in its facts and little in the way of general guidance can be distilled from the judgements.

ACCESS AND BOUNDARY PROVISIONS

Following are few points:

·        Where a Property is described in a conveyance as “bounded by” a road, lane or something similar, the first matter to establish is that the Exclusive property right or a right of common property in the road or lane has not also been conveyed to the owner of the adjacent property.

·        In respect of registered interests the boundaries there of will be indicated by the description of the land based upon the Ordnance Survey map. In such cases it should therefore be readily apparent whether or not the property right of a proprietor includes any part of an adjacent road or lane over which he requires access.

·        Even if it is clear that the proprietors on either side of a road or lane have some form of property right in the road or lane there may be some difficulty in determining exactly what that property right is and the extent of it. 

·        In relation to public roads the presumption in favour of the medium filum is based on the assumption that when the road was formed, ground was taken from the proprietors on either side for its formation. This assumption requires tobe adapted to fit with modern practice.

·        The road bounding a property is a “public” road or a “private” road in terms of the Roads (Scotland) Act 1984 which the public have a right of passage or a public right-of-way the proprietor of an adjacent plot of ground may not be concerned that he has no servitude of access over the road because the rights available to him as a member of the public will suffice for all requirements of access.

·        Where circumstances are such that there are no public rites of passage all access over the whole Road or lane, 9 rights of common interest over the whole road or lane, and no servitudes implied from the circumstances, it becomes all the more important that the adjacent proprietor has a servitude right of access over the road or lane in terms of his title.

TITLE PROVISIONS

The term of the title deeds, the courts have never drawn up an exhaustive list of matters which they have found to be of assistance in determining that a servitude of access does exist. Indeed, it is unlikely that such a list of possible, given the variety of cases which might arise. Furthermore, it is clear that the relevant deed read in full and reference may be made to clauses other than description of the dominant tenement, search as the burdens section, the warrendice clause and details contained in any attached plan. No two cases will be identical, with the result that a phrase which is conclusive in one case maybe outweighed by the inference arising from other phrases in another case.

FEUDAL DEEDS

The original deed creating the dominant tenement to which the alleged servitude is referable maybe a feudal deed and the lean by which the feu bounded and over which the servitude is claimed remains in the ownership of the superior at the time of the grant. In some cases the courts have referred to the continuing relationship of contract for assistance in justifying the existence of a servitude. Where this approach is adopted, the existence of the feudal relationship is not regarded as sufficient by itself to create the servitude but it appears to be a factor which assists the establishment of servitude when taken together with other factors. This should be so is not entirely clear, what it may be the case that the implied grant free ish and entry which is contained in any conveyance is also contained in a feudal grant but in the later context it remains as a continuing obligation implied in the feudal contract of tenure.

Where servitude is created in such cases, the existence of the right may be justified in questions between the original superior and original vassal as a “contract right”, on the basis that it is an incident of the feudal contract of tenure.

CONCLUSION

We have no doubt that in appropriate cases a valid servitude may be implied from the terms of deeds. Nevertheless, suggest servitude may not meet current standards off marketability, less still the  requirements of the keeper under the land registration system,  and party benefited by search a servitude should, if possible, seek to have the right acknowledged by the declarator of Court or alternatively by express retrospective grant from the serveint proprietor.

Navin Kumar Jaggi

SayeshaSuri