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110. Part 7 of the draft Bill is concerned with servitudes and is highly technical. A servitude is similar to a real burden, in that it requires both a benefited and a burdened property, and it is an obligation that runs with the land. However, servitudes are limited to a fixed list of certain types of obligation. Unlike burdens, servitudes do not have to be recorded, and it is possible for them to arise by implication or prescription, for example where a right of access has been exercised without challenge over an extended period. The draft Bill does not attempt to rewrite the common law on servitudes, but it does provide a number of changes to align the law of servitudes with the reformed law of real burdens. The main objective of the Part is to remove the overlap between servitudes and burdens.
Positive and negative servitudes
111. Servitudes can exist in two categories: positive and negative. A positive servitude permits limited use of the property, such as a right of access for transport or the running of a pipeline. In theory it may also be possible to create this type of servitude as a real burden. Negative servitudes are uncommon and thought to be confined to restrictions on building, especially for the protection of light or prospect. Section 75 of the draft Bill states that it should no longer be possible to create negative servitudes. Obligations of this type will have to be created as real burdens in the future.
The Executive believes that it should no longer be possible to create negative servitudes.
112. Section 76 will convert existing negative servitudes into real burdens on the appointed day. They will be extinguished ten years later unless they were already registered against the burdened property on the appointed day or unless a notice identifying the benefited property and the burdened property has been registered.
The Executive agrees that the registration requirement should apply to negative servitudes.
113. Generally obligations allowing limited use of the burdened property will be confined to positive servitudes. Section 77 states that a real burden consisting of a right to enter or make use of the burdened property will be converted into a positive servitude after the appointed day. Section 2 of the draft Bill, however, allows a real burden to provide a right to enter or use the burdened property for a purpose ancillary to other obligations imposed by real burdens.
The Executive agrees with the proposed realignment of the relationship between real burdens and servitudes.
Creation of new servitudes by deed
114. Positive servitudes can be created in three ways: by express provision in a deed, by implication, or by positive prescription. Only the first category is affected by the draft Bill. In line with the Commission's proposals on registration of real burdens, section 71 provides that when a servitude is created in a deed, the constitutive deed must be registered against both the benefited and burdened property.
The Executive agrees that when a servitude is created, the constitutive deed must be registered against both properties.
115. Servitudes are restricted into certain types and categories by a fixed list that has been derived from Roman law. As registration is not currently required, the list does offer some assurance that any possible servitudes on land are limited in type. The list is very restrictive. As registration will now be required for servitudes created by deed, section 72 provides that they do not have to fit into the list. The fixed list remains in place for deeds not created by registration.
The Executive agrees that it should no longer be necessary for servitudes to be on the fixed list.
116. There has been some confusion over whether a right to lead a pipe, cable, wire or other such enclosed unit over land could be constituted as a positive servitude. Section 73 states that this will be possible in the future and be deemed always to have been the case.
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Discussion Point 26 The Executive agrees that a right to lead a pipe, etc. over land can be a servitude. Do you agree? Will the retrospective nature of this section create any difficulties? |
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