Requirements for a Servitude

Servitudes are subordinate real rights over a property (the burdened property) for the benefit of another property (the benefited property) which may be exercised by the owner of the benefited property, their tenants and invitees. These include eg rights of Access, rights to lay pipes and cables under or over the burdened property and rights to overhang the burdened property. The law of servitudes was clarified and simplified by the Title Conditions (Scotland) Act 2003 (TC(S)A 2003).

Servitudes run with the land and can be enforced by successors in title to the benefited property.

Servitudes must be positive ie they must be a right to do something rather than a restriction preventing the burdened property being used in a particular way (eg prohibiting building on the burdened property above a certain height). It became incompetent to create negative servitudes on 28 November 2004.

Negative servitudes created before the 28 November 2004 were automatically converted on that day into real burdens by the TC(S)A 2003, s 80(1) and were extinguished on 28