Rights of Access / Servitudes

Background

In Scotland, a servitude is a right over an area of land, which can include garden ground (known as “the burdened property”) for the benefit of another area of land or building (known as “the benefitted property”). This longstanding concept is still very much relevant today. In fact, a large percentage of properties in Scotland depend upon servitudes to be lived in, occupied or maintained.

What does that really mean?

A servitude (in England and Wales, typically called an ‘easement’) gives you rights over a property belonging to someone else. These rights govern use of both domestic and commercial properties and undeveloped areas. Common examples of servitudes include –

• right of access to another property (by foot, in a car, or in order to effect repairs and maintenance).
• right of to lead services through another property (such as water and gas pipes and electricity cables).
• the right to park a car in a certain place.

In rural areas the number of servitudes relied upon is more numerous than in urban areas and single rural properties often are dependent upon the existence of multiple servitudes including-

• right to draw water from a private water supply
• the right to discharge foul water into a watercourse
• the right to extract a commercial timber crop

Conversely, a servitude can give someone else rights over your property.  As servitudes can be created by use (much like a public right of way) they may not appear in your title deed, and the evidence relative to their establishment in this manner is often insufficient to form a clear view. If you wish to insure against unknown or adverse servitudes affecting your Property this can also usually be considered.

Why might you need an insurance Policy for Absence of Servitude?

When acquiring a property or piece of land it is important to ensure that you have the necessary rights to use and enjoy it without dispute or interference. The existence or lack of servitudes could have serious implications. If a right is missing that is considered essential to the marketability of the property then the value of the property may be reduced significantly.

These rights are most important where you intend to do something new with a property, including to effect alterations to it. In the case of development from the ground up of a new building the work may depend on a host of servitude rights, including rights of access, rights to lead in services and even rights to allow the machinery required to develop over neighbouring areas. If all relevant servitudes supporting planned works do not exist then a project could founder.

Even where you believe that rights have been established through continued exercise there are rules which govern the required period of usage.  Challenge and consent can both strengthen or weaken an argument for the creation of an invulnerable right, depending on the circumstances governing them.

What does an Absence of Servitude insurance policy cover?

• Damages/compensation awarded to a claimant,
• adverse difference in market value,
• out of court settlements (subject to the agreement of the Insurer),
• cost of obtaining a legal servitude in respect of the access/services.