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Agricultural land and the rights associated with it can be complex. As a landowner, this does not mean that you can do exactly what you want with your property. Other people may also have rights over your land. Equally, you may have rights over neighbouring property. It can be challenging to understand what rights are at play and deciphering the title deeds to your property can seem daunting.
At The McKinstry Company, we are agricultural property law specialists. We can advise on all matters of agricultural law, including servitudes and rights of way. Below we outline some key information on this topic. However, to understand a servitude in relation to a particular property, it is important to examine the title to that particular property. You should, therefore, consult our expert team who can tailor our advice to your specific situation. Get in touch today – we are happy to help.
What Is a Servitude?
In Scots law, a servitude is a right over a piece of land which is known as the burdened property. This right benefits another piece of land, which is known as the benefited property.
A servitude is what is known as a ‘real right.’ One of the consequences of being a real right means that when you buy land, you are bound by the servitude in the same way the previous owner was. The right transfers with the land. A servitude right can be extensive, but it can never be so extensive as to effectively deprive the burdened property owner of the effective use of their land.
There are many different types of servitude. In an agricultural context, the most common are rights of access, rights of drainage and rights of pasturage. For example, neighbouring landowners may have the right to cross your land to get to the main road.
How Do I Know What Servitudes Apply to My Land?
Unfortunately, it is not easy to know what servitudes apply to land. This is because there are different ways in which a servitude can be created. For example, servitudes can be expressly set out in your title deeds or they can be created by prescription.
For servitudes set out in your title deeds, these are express, but it can still be difficult to understand them. The title to your property may be set out in the Land Register, or your property may be registered in the General Register of Sasines. A title registered in the Land Register is more navigable, as all the relevant provisions are set out in the same place. However, to understand a tile in the Register of Sasines, it will be necessary to examine the deeds which previously conveyed the property to previous owners. These deeds may contain servitudes but can be very hard to decipher. It is common for rural property to be still registered in this way. An expert property lawyer can help you in the process of understanding what servitudes apply to your property.
In terms of servitudes created by prescription, these are servitudes created not by a formal contract (or ‘deed’) but through use. A servitude is created through usage which is exercised openly, peaceably and without judicial interruption for 20 years. It can be challenging to know if these servitudes exist and, again, expert advice should be sought.
Contact The McKinstry Company Agriculture Lawyers in Ayrshire
If you want to learn more about servitudes over agricultural property, get in touch today. You can contact us on 01292 281711 or via our online contact form. Our friendly and dedicated team are here to help you.
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