A general rule of construction in relation to formulae drafted Conveyancing Deeds is that where the dispositive clause contains obscure phraseology, other parts of that Clause may be examined to clarify the matter. This rule will be applied to the Clause of Grant in Deeds creating servitudes. Where a servitude is created in a Deed which is also a Conveyance of a servient or dominant tenement, the court will have regard to the terms of the dispositive clause not only in so far as they refer to the servitude but also as they relate to the property right in the servient or dominant tenement.
OCCASIONS WHEN DEEDS OF SERVITUDE ENCOUNTERED
A Deed of servitude may create a servitude when a servitude is created for the first time by grant or reservation. The Deed may also be granted to regularise a situation where the use by the owner of the dominant tenement has been in excess of what was permitted in an earlier express grant or reservation. The Deed may be retrospective and declaratory of the existence of a servitude which has been constituted other than by express grant or reservation.
DESIRABILITY OF DECLARATORY DEEDS
A Declaratory Deed may be desirable upon the purchase of the dominant tenement, where a servitude, which is vital to the continued use of the tenement, has been constituted only by prescription, by grant implied from the terms of a Deed, by acquiescence or by grant or reservation implied from the circumstances. If suitable affidavits about possession are available in sufficient terms to demonstrate possession for the prescriptive period, the purchaser's solicitor maybe willing to accept an extension to the addenda to the description in the disposition by the seller to the purchaser containing a grant of servitude. This Deed will not be a non domino in respect of the servitude, if such a servitude is otherwise properly constituted, but the incorporation of the servitude into the titles will be useful form of practical point of view, particularly if the granter of the Deed is also willing to grant absolute warrandice in respect of the servitude.
A date of servitude must comply with the rules of formal validity. These rules were substantially altered by the Requirements of Writing (Scotland) Act which came into force on August 1, 1995. A distinction must be made between Deeds executed before that date and those executed on or after that date. The possibility of constituting servitude by means of acquiescence following upon Deeds of lesser formality is dealt with elsewhere.
The effect of the 1995 Act in relation to the Deeds of servitude is not completely straight forward and much hangs on the definitions in the Act and other legislation. A written document, properly subscribed, is required to create, transfer, vary or extinguish an "interest in land". In some Deeds of servitude there is a provision that certain Essentials, such as the route, are to be agreed between the parties at a later stage. Search of provision will be effective, provided that the later did also comply with the requirements of formal validity. The later Deed may also be registered in the relevant registers if it complies with the additional provisions relating to the self proving status of the subscription of the granter.
Although there is no form of Deed of servitude generally prescribed by statute, legislative provisions relating to Conveyancing in general do have a significant effect in relation to the modern forms of Deeds whereby servitudes are granted, discharged or otherwise dealt with, and also in relation to the effect of those Deeds and the obligations imported therein.
STATUTORY FORMS OF DEEDS
There is no statutorily prescribed form for a Deed which grants, reserves or transfers a servitude. There is a narrow exception where servitudes are granted or reserved in a “schedule” Conveyance but this is not a specialty arising out of the law of servitudes. A Deed granting or reserving a servitude may constitute a Deed of conditions but there is no prescribed form for search or Deed. Some proprietors, such as heirs of entail, are limited in their ability to grant servitudes but may, in particular instances, grant servitudes in a form approved by the court upon a petition in terms of statutory procedure.
WHO MAY DEMAND A DEED OF SERVITUDE?
Proprietor of a lot of ground cannot be obliged to grand a Deed of servitude in favour of neighbouring proprietor unless that proprietor has a legal right to demand such a Deed. Such right is frequently contractual, as where missives have been entered into to obtain a Deed of servitude. In other cases, the right may arise from of court decree issued, for example, in pursuance of a particular statutory provision. In certain cases, a proprietor of a plot of ground may be obliged to permit certain activity to be carried out by a neighbouring proprietor on the proprietor's plot of ground because the neighbouring proprietor has a right arising other than under Deed of servitude, for example a statutory right.
CATEGORY OF DEEDS
There is authority for the view that the Deed maybe mortis cause. Nevertheless, Deeds constituting servitude will almost invariably be inter-vivos Deeds and we will confine our attention to these. The Deeds in which servitudes may be created expressly may be categorised into three broadly defined groups:-
1. Conveyance of dominant tenement with provisions creating of servitude benefiting the dominant tenement over a servient tenement retained by the granter. The Deed may be in any competent form of Conveyance. There does not appear to have been any reason in principle buy a servitude could not be created by a disposition in security of the dominant tenement which would be exercisable by the creditor and his Successors in title over other lands retained by the debtor. The granting of such security Deeds is now generally incompetent.
2. A Conveyance of the servient tenement which provisions creating a servitude burdening the servient tenement and benefiting a dominant tenement retained by the granter. Again, the Deed may be any competent form of Conveyance, usually a disposition.
3. A Deed which is not a Conveyance of land, which may be unilateral, bilateral or multilateral, for example audit of conditions in terms of the Conveyancing (Scotland) Act 1874, affecting either the dominant or servient tenement or both. Such Deeds include separate disposition of a servitude, a bond of servitude or missives.
The issue of third party rights can arise where, in terms of a disc position of a plot off Ground from A to B, the parties agree that C should have a servitude over the land conveyed in favour of separate lands held by C. This raises the issue as to whether a third party can acquire a right to a servitude in terms of a Deed to which he is not a party. Despite some doubts in a recent sheriff court case related to a positive servitude, in our view the answer is "yes". The issue is commonly encountered in relation to negative servitudes which impose building restrictions. There appears to be no reason in principle why positive servitudes could not also be created in such a Deed. It would be prudent to ensure that the Deed contains a sufficient description of the lands held by C (standard suitable to enable recording for registration of the Deed being useful but not required) and wording sufficient to indicate that the right created is to be a real right rather than a mere contractual right. A mechanism will required to be established intimate the existence of the right to C and provide for its acceptance by him, particularly if the grant is accompanied by any conventional servitude conditions imposing positive obligations on C. In practice this is best achieved by adding a warrant of registration in favour of C on the Deed and having the Deed recorded in the Sasine Register in respect of C's existing subjects comprising the dominant tenement. In Land Registration areas, where the lands held by C are already a registered interest, an application for registration may be made on behalf of C in respect of the servitude.
POSSESSION AND RECORDING
A Servitude created by a grant or reservation in a Deed is a real right which has its Origins in contract but the process of creation of the real right is, in theory, distinct from the contract and comprises some act which serves to publicize its existence to the world at large. It is often said that a positive servitude may be made real by either possession or recording of the Deed in the register of Sasines.
A servitude will be regarded as "recorded" or "registered" for the purpose of being constituted a real right if it is entered by the keeper in either or both search sheets or title sheets. Two common situations will occur where a landowner wishes to grant a servitude:-
1. Where a land owner dispones part of his ground and grants a positive servitude in favour of the land disponed which is exercisable over his retained land. In such a case the Deed granting the positive servitude right creates only of contractual right until the right is made real by means of the recording of the Deed. No exercise prior to the recording of the Deed can render the servitude a real because the tenements remain in the one ownership until the Conveyance is recorded.
2. Where a landowner grants a positive servitude in favor of the land of an existing neighbouring proprietor: The Deed granting the positive servitude right creates only a contractual right until the right is made real by means of the recording of the Deed or, if earlier, by the exercise of the right. In this regard there is another difference with real conditions in the narrow sense which, even if granted in a separate Deed conditions when the two tenements already exist, cannot be created the Deed of grant is recorded as part of the servient title.
THE "OFFSIDE GOALS RULE"
The positive aspect of this contractual right is that the granter will be able to enforce the right against the granter although, subject to the Limited exception of the "offside goals rule", he will not be able to enforce it directly against the rest of the world.
The negative aspect of the contractual right is that any degree of warrandice expressly contained or implied in the Deed of servitude will impose a contractual obligation on the granter of the Deed not to grant any adverse right which would either prevent the servitude right granted becoming a real right or interfere with the servitude after it has been made real. If the granter breaches this negative aspect of the contractual obligation before the servitude is made real, by disponing the servant tenement to a third party without obliging the third party to respect the servitude, the grantee of the servitude will be prejudiced because, upon the third party recording his title, that title will be made real prior to the servitude being made real. In such circumstances the grantee original servitude will have a right to recover damages from the granter. Where, however, the third party is aware of the existence of the prior delivered granting the servitude, the "offside goals rule" will operate.
Navin Kumar Jaggi