The remedies in respect of servitudes are similar to those in the context of rights of way. The primary remedy to establish the existence or non-existence office servitude right is declarator. An action of declarator may be combined with the conclusion or crave for interdict. Before dealing with the specific types of action, it is desirable to consider preliminary matters, such as title and interest to sue.
TITLE AND INTEREST TO SUE
Servitude is a right which is inseparable from heritable property, any action should normally be raised by, or against, the heritable proprietor or his representative. It has been held that an action can be raised competently by someone who is not the owner, where infeftment follows the raising of the action.
Where the property is transferred during the currency of the action, the new owner should be sisted. A person who is needed the dominant or the servant proprietor has no title to sue in respect of a servitude granted by and to someone else. The heritable proprietor has no title to race and action against someone using ground which he has leased, where the person using the ground has the tenant’s permission and there is no averment that a servitude, or right-of-way, is likely to be established by the continued use. It is not necessary to call any heritable creditor for his interest but the action should be intimated to him. However, a heritable creditor would have a title and an interest to raise or defend any action in relation to a servitude where the existence or non-existence of the servitude would adversely affect his security right.
In many cases, the title to sue will be obvious, as will the interest, but the person may be met by a plea of acquiescence which, if successful, will be destructive of an interest to sue. Thus, if it can be shown that the pursuer, as the owner of the servient tenement, has permitted the owner of the dominant tenement to use an excess route in a way which is inconsistent with the continued existence of a servitude right, the title to enforce may still be there, but there will not be an interest. Likewise, if a negative servitude, for example altius non tollendi, affects a number of properties but the dominant tenement has permitted some proprietors to build, or to build beyond the agreed height, that may be met by a plea of no interest to sue.
There will be only one person, natural or juristic, who is the owner of the relevant tenement, which event that person should be the pursue or defender, as the case may be. However, there may be a number of other persons with an interest in the property, for example a heritable creditor, the superior, a lessee or a life-renter, and it is desirable to have these people conjoined as pursuers or defenders. It is essential that the parties, and in particular the pursuer, are sufficiently identified.
Where the property is held jointly, as in the case of trustees, it is desirable that the action be raised by, or against, all the trustees. There is, however, some authority for saying that a quorum can sue and be sued, even where the trust does not itself have provision for such a quorum.
It was settled in an early case that an action of decorator about the ownership of the property may be pursued against a feuar without the need to make the superior a party to the action.
If a jus quaesitum tertio exist a co-feuar is entitled to enforce a servitude write conceived in his favour.
· SELF HELP
While self-help is a remedy, anyone contemplating it should proceed with extreme caution because an inappropriate use of the remedy male and the user in the trouble. There are a number of situations in which proprietor of the dominant tenement might consider using self help, for example to remove an obstruction on an access or to stop water flooding over it, to unblock an aqueduct, or pull down a building which has been erected in contravention of a negative servitude.
An action of the declarator may be raised by the proprietor of what is claimed to be the dominant tenement for declarator that a servitude right exists, or exists and is exercisable in a particular manner, for example vehicular as well as pedestrian access.
Interdict may be sought on either a possessory or a petitory basis. In a possessory action, the remedy is short on the basis only of position, whereas, in a petitory action, the remedy sought on the basis of right. Interdict may be sought by the proprietor of the dominant tenement against obstruction of the servitude or by the proprietor of the servient tenament against use which is unauthorised.
· ACTION OF REMOVAL AND DAMAGES
If matters have gone so far that interdict is not competent, then an action may be raised for removal of anything which prevents the proper exercise of the servitude right. This will usually be combined with a declarator that the right exists, if it is likely that its existence may be put in issue. The action maybe a possessory one, based on seven years' possession, or it may be a petitory action based on right, i. e., an action of a declarator.
A crave for reinstatement is appropriate to put back something which has been interfered with unlawfully by one of the parties. It would be available if, for example, a dominant proprietor has repaired a road over which he has a right of access and the repair work has been undone by the servant proprietor. It is likely to be sought where it is held that a servient proprietor is entitled to have an "obstruction" on a right of access but where it has been removed by the dominant proprietor.
The proprietor of the dominant tenement is entitled to recover damages, resulting from wrongful interference with the servitude by the servant proprietor or any other person. Likewise, the proprietor of the servant tenement should be entitled to recover damages from the owner of the dominant tenament for any wrongful use of the servitude. The damages recoverable under such a provision probably reflect the general law of contract and extend to all reasonably foreseeable losses.
The Granter of a deed of servitude may we wish to reserve and opinion to suspend the exercise of the servitude during any period in which the grantee fails to comply with the legally implied conditions on any conventional servitude conditions. Such a clause would be of value only if the breach is remediable. This type of drafting would provide a useful graduation of sanctions on the part of the granter and conceivably be an incentive to the grantee to remedy any breaches of servitude conditions.
Navin Kumar Jaggi