Implied servitudes Previous practice 6.54 Notwithstanding the comfort afforded by statute to servitude rights which have been constituted either by implied grant or by possession alone, the Keeper has been asked to enter such servitude rights  in  the  property  section  of  the  title  sheet.  Previously  the  Keeper  would  ask  for  supporting evidence that the servitude had been properly constituted and the evidence supplied would take the form  of  affidavits.  The  Keeper  then  entered  the  servitude,  excluding  indemnity  in  respect  of  the servitude if the affidavit evidence did not cover the whole of the necessary prescriptive period. The dangers of affidavit evidence 6.55 Affidavit evidence submitted to the Keeper with respect to a dominant tenement represents a one sided version of events. There is little or no risk for deponents by either being selective or exaggerating the position. There is also scope for more innocent misrepresentation by the deponent of the position on  the  ground.  On  numerous  occasions  the  Keeper  has  been  the  recipient  of  subsequent  contrary evidence from proprietors of putative servient tenements to the effect that no servitude had ever been constituted.  The Keeper would then find himself in  the middle of a dispute that he had no power to resolve. In addition his indemnity could be at risk should it transpire the affidavit evidence was less than accurate. Limitations on rectification 6.56  Experience has shown that rectification - which in practice is limited to subsection 9(3)(a)(iii) where  ‘the  inaccuracy  has  been  caused  wholly  or  substantially  by  the  fraud  or  carelessness  of  the proprietor in possession’ - to remove or amend an inaccurate entry of a servitude right is not a viable option in the majority of cases. The Keeper would have to show that the applicant was, or ought to have been, aware that the right had not in fact been properly constituted. Clearly however, a purchaser may  not  be  in  a  position  to  know  if  affidavits  accepted  in  good  faith  are  false  or  inaccurate. Registration of a servitude right with full indemnity therefore has the practical effect of sterilising the putative servient proprietor’s right of challenge. Whilst the Keeper may then be liable in indemnity to the proprietors of the putative servient tenement this is far from the ideal solution. Limitations of an exclusion of indemnity 6.57  Excluding  indemnity  in  respect  of  a  servitude  predicated  on  affidavit  evidence  does  not  resolve matters satisfactorily. An exclusion of indemnity would not prevent the proprietor of the putative servient tenement from making representations to the Keeper challenging the inclusion of a servitude in the title sheet.  When  faced  with  contrary  evidence,  unless  the  proprietor  of  the  putative  dominant  tenement rescinds his servitude right, the Keeper may be placed in an invidious position. He lacks both the judicial powers  and  any  sort  of  procedural  framework  necessary  for  dealing  fairly  and  effectively  with  such situations. The refusal by the Keeper to make any such decision is likely to embroil him in litigation which is, or ought to be, truly a dispute between neighbours. Moreover, the expense of such litigation may be visited on the Keeper who, by his administrative action, has put the proprietor of the servient tenement in the position of vindicating his right. Current policy 6.58  In  view  of  the  dangers  inherent  in  making  decisions  based  on  possibly  unreliable  affidavit evidence the Keeper felt compelled to review his policy. From the end of 1997 he decided that he would not alter, by his own administrative action, the footing upon which a servitude right rests. Rather, the

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

	< Previous Page | Next Page >