In theory, a negative servitude could be created by statute, decree arbitral or judicial decree but, leaving those possibilities aside, we examine the stated proposition that a negative servitude can be created only expressly.
THE STANDARD VIEW
It is said that negative servitude can be created only by express grant or
express reservation. According to Erskine;
“Negative servitudes... As they consist mainly in the restraint laid on the proprietor in the use of his property, cannot possibly be accompanied with any exercise of the right by the dominant tenement... It follows also from the nature of negative servitudes that they cannot be acquired by mere prescription, or without the express consent of the proprietor of the servient tenement. Though one should, for a century of years together, have, in the exercise of his property, applied himself to one particular use of it, though for instance, he should during the whole period have.. contented himself with a house 30 feet high... He cannot be there by precluded from... Raising any house already built to what height he pleases, however prejudicial it may prove to the light or prospect of the neighbouring tenement. His having before confined himself to the use is to be ascribed not to obligation or servitude, which is never to be presumed, but to choice.”
Bell is to the same effect: “Negative servitudes can be constituted only by grant being incapable of possession and so of prescription.” These statements are borne out by the decision that local custom could not be admitted as an exception to this rule. Similarly, it has been held that it is insufficient to establish a negative servitude ne luminibus officiatur simply to claim that the offending act, consisting of the deliberate erection of a screen to obscure the view from the windows serving adjacent subjects, was done in aemulationem vicini, although in one case which appeared to admit the possibility of creation of a negative servitude by implication it was indicated that the proof of such a claim would be one factor amongst others in deciding whether a negative servitude had been implied. There has been more recent judicial restatement of the general rule, to the effect that it is "Well established in the Law of Scotland". It has also been observed judicially that there is no reported case in which a negative servitude, which has been extinguished by confusion when the dominant and servient tenements come into single ownership, has been held to revive without a new express grant or reservation, when the ownership of the two tenements later separates.
EFFECT ON CONSTRUCTION
The rule that a negative servitude cannot be created by implication from the surrounding circumstances is not itself a rule of construction but it was used in one case to justify a refusal to imply one negative servitude from the terms of a deed which imposed another negative servitude relating to something else.
In Ross vs Cuthberston, the court examined the title deeds of a proprietor of a tenement in St George's Place, Glasgow which stated that a boundary wall of the area behind this house should not be raised above a certain height. Upholding the judgement of the lord Ordinary, the First Division held that such provisions did not import or infer a restriction or servitude restraining the proprietor from erecting buildings within his own ground above the height of the boundary wall. A brief extract from the opinion the Lord Ordinary (Anderson) illustrates the approach of the court.
“A negative servitude cannot easily be improved by implication. It can only be constituted by grant; and being a restriction on the natural use and enjoyment of property, its nature and extent must be clearly expressed and defined... It would be against the whole Law of negative servitude to imply, from restrictions as to the use and height of the mean wall, a provision against to building on the rest of the ground, which is conveyed in absolute property, or a limitation on the height of the buildings to be erected on it.”
The moral for the draftsman wishing to create a negative servitude is that clear and precise language should be adopted and ambiguity avoided. Further suggestions on drafting are set out in another paragraph. Having said that, we have noted in another chapter a small number of decisions where the courts have been prepared to consider the possibility that a negative servitude might be inferred from provisions in deeds which do not expressly grant or reserve the right.
RATIONALE BEHIND RULE AGAINST IMPLICATION
The rationale behind the rule against the creation of negative servitude by implication from surrounding circumstances as stated by the institutional writers is plain. It was stated by counsel at start of the 19th century in Glassford vs Astle in the following terms:
“The Rule of Law, that person having ground in property free from servitude, may build on it to the verge without regard to the buildings that stand on the adjoining property, is highly expedient. It is plain and simple; everybody can know it; and suit their conducts to it. It prevents inextricable difficulty in settling the rights of neighbours.” And it remains valid today.
NEGATIVE SERVITUDE AND PRESCRIPTION
One feature which may have influenced the court in Heron vs Gray was that the windows had been dare for over 40 years and Stair does suggest that a negative servitude could be constituted by prescription, if the owner of the dominance tenement had “been in use to hinder his neighbour take away that prospect in any lawful way, by reiterate acts during the time of prescription.” As Rankine points out, that comment is not only inconsistent with an earlier statement in the same passage but it would require proof of abstention by the owner of the servient tenement rather than proof that a particular state of affairs has existed for the prescriptive period. We agree with Rankine that Stair's view presents enormous practical problems and, despite its obvious authority, we would respectfully suggest that it ought not to be followed. Furthermore, it is indirect conflict with Erskine and Bell and with other cases where the statements of those writers have been applied.
COMPARISON WITH JUS QUAESITUM TERTIO
A limited exception to the rule that a negative servitude cannot arise by means of implied grant exist where parties receive dispositions from a common disponer or hold property from the same superior or over superior and are subject to identical or similar real conditions and have a jus quaesitum tertio to enforce these conditions amongst themselves. These real conditions may contain obligations with the same purpose of the recognised servitudes, non aedificandi and ne luminibus officiatur. The right of co-feuars and co-disponees has been referred to as a "servitude" in certain of the older cases. In Hislop vs MacRitchie's Trs, Lord Watson stated:
“the right of the feuar, though arising ex contractu, is of the nature of a proper servitude, his feuar being the dominant tenement.”
It has been commented that the reference to a “servitude” in this context should be understood as meaning not a servitude stricto sensu, but a generic term for a real condition. Furthermore, such rights are implied from the terms of the titles and are of a different type from those arising from a grant or reservation implied from the surrounding circumstances, such as the layout of a site and the actings of the parties, which give rise to servitudes. The rights constituted by implication from the terms of the titles do not give rise to such problems as the creation of servitudes by implication on the basis of the Heron and Mathieson cases. The reason is that the conditions necessary for constitution of rights of enforcement by implication are well established and reasonably narrowly defined in case law. Furthermore, the rights of the co-feuars to enforce the real conditions is in addition to, and not in substitution for, the right of the superior or disponer to enforce and, for such a right to exist, it must be validly created according to the established rules which include insertion of the burdens in the servant title by means of registration of the burden in either the Register of Sasines of the Land Register. The practitioner is not left to decide whether the surrounding circumstances alone give rise to an implication of a grant for reservation of a servitude.
Navin Kumar Jaggi