Extinction of servitudes

Servitude can be extinguished in whole or in part by renunciation, non utendo, by prescription, elapsing of the limited period for which they were created, extinction of either of the tenement and confusio. There are, however, a variety of other methods by which servitudes may be extinguished.

Following are the ways of extinction of servitudes:

• Express Discharge or renunciation;
• Implied Discharge;
• Abandonment, including actions inconsistent with the continuance of a servitude, non-use and acquiescence;
• Destruction of either the dominant, or the servient tenement, or both;
• The two tenements coming into the ownership of the same person, holding them in the same capacity (confusio);
• Lapse of time; or fulfilment of a condition;
• Prescription;
• Discharge by the lawful acts of third parties;
• Loss of interest to enforce;
• The creation of an express right, where previously one was implied;
• Statute

EXPRESS DISCHARGE OR RENUNCIATION

The term “discharge” main refer to extinction of a servitude by a court decree, or by a decision of the Lands Tribunal and includes extinction by means of a deed granted by the dominant proprietor. Strictly speaking, the term "renunciation" is confined to extinction by means of the actions of the dominant proprietor (usually involving the grant of a written discharge or surrender) because only he is entitled to enforce the servitude.

Court decree - if there is a decree in a court action, the court decree may be viewed as an express discharge of the right. The discharge or extinction affected by these means is effective against all parties and not just the parties to the court action.

Express discharge - just as a servitude can be created expressly, so it can also be discharged or surrendered by that method. An Express discharge or surrender is not limited to servitudes created expressly and may be utilised in relation to servitudes, however originally constituted.

Power to renounce and parties who should consent - the power to grant discharge is usually one which the dominant proprietor alone has a right to exercise. Where the proprietor acquires the whole of the dominant tenement after the servitude is created, he does not need the consent of his predecessor in title to grant a discharge of the servitude.

IMPLIED DISCHARGE

Implied discharge is different from either non-use or acquiescence, in that it involves some act on the part of the owner of the dominant tenement which is inconsistent with the continued existence of the servitude. Non- use and acquiescence do not necessarily involve any action on the part of the owner of the dominant tenement. 

Where servitude is constituted by missives but is not repeated in the conveyance. It has been held that servitude is impliedly extinguished. Conveyance by the person entitled to enforce the servitude where the deed deliberately omits reference to the servitude right which had previously been expressly referred to in the titles of the dominant tenement.

ACQUIESCENCE

Acquiescence is applicable in relation to the extinction of all types of obligations falling within the wider family group of real conditions. Acquiescence is an aspect of personal bar. It has been said, more briefly, that the two things are necessary in order to establish acquiescence, namely:

• That the person who is alleged to have acquiesced shall have had power to stop the thing complained of
• That he shall have had full knowledge of what was being done

In our opinion, is the operations carried out render the servitude inoperable, or inoperable in part, it is irrelevant whether they were carried out at great expense to the owner the servient tenement, but it is, of course, like that will be the case. Thus, where it is argued that a servitude has been lost by acquiescence, it will be essential to prove that the owner of the dominant tenement knew that the owner of the servient tenement was doing something to interfere with, or prevent, the operation or the full operation of the servitude right and, further, that the owner of the dominant tenement did nothing to prevent this.

DESTRUCTION OF EITHER TENEMENT

The destruction may take the form of actual destruction of the dominant or servient tenement or its disappearance as such a tenement, despite its continued physical existence. The cases of actual destruction the dominant tenement have arisen in connection with thirlage, and although in our opinion it is not a servitude. Where the tenement is an incorporeal tenement rather than a piece of land this is less difficult. The use of servitude was restricted to enabling access to the particular quasi-public facility on the dominant tenement and this was destroyed or ceased to be used as such the right of access terminated.

CONFUSIO

Servitude requires the existence of both a dominant and servient tenement, the acquisition of the servient tenement by the owner of the dominant, or vice versa, is said to discharge the servitude. Bell's view is similar to Erskine, although he goes on to say that the servitude will revive on a subsequent separation of two tenements. This principal of confusio is derived from Roman Law. It was accepted as being part of Scots Law in an early case on thirlage, in which it was held that the servitude was discharged when the proprietor of the mill acquired the lands which were thrilled. 

LAPSE OF TIME OR FULFILLMENT OF PURPOSE

Extinction of servitude by lapse of time differs from the negative prescription in that prescription operates as a matter of law, irrespective of the wishes of the parties, whereas extinction by lapse of time reflects the wishes express or implied of the parties. It is therefore almost exclusively limited to conventional servitudes. Two main instances of grants of a servitude for a limited time may be identified as:

• Where the right of the party granting the servitude is limited induration, such as a proper liferent, so that party is unable to grant a servitude right with duration longer than his underlying right.
• Where the party granting the right is himself entitled to a right of perpetual duration search as a right of dominium where he simply wishes to grant a servitude of lesser duration.

PRESCRIPTION

Not only may servitudes which are established by prescription, be lost by a contrary prescription; But though they should be constituted by grant, they may be extinguished in the same manner, by the servient tenement enjoying an immunity from the servitude for forty years, as in thrilage, or by the claimant's forbearing to use it, as in the servitude of road. In either case, the servitude is supposed to be abandoned or relinquished, because all grants whatever loses their effect by disuse for forty days.

LAWFUL ACTS OF THIRD PARTIES

As a real right a servitude is enforceable against the whole world and the dominant proprietor may and force it against third parties. Nevertheless, a servitude will be extinguished if third party lawfully does something which permanently prevents its operation. This will often be actings under statutory authority, for example, compulsory purchase. Thus, if a third party erects a building on land between the dominant and the servient tenements that could discharge servitudes for example, of access and light. Similarly, a dominant proprietor may have acquired servitude of access along most of a road but his right to traverse the middle part is constituted by a leasehold right of access granted by a third party. If the third party lawfully resumes the leasehold right by virtue of a clause to that effect in the lease this will render passage along the whole road impossible. In such a case the servitude over the remaining part of the road may be discharged if it is clear that there is no reasonable prospect of the dominant proprietor acquiring a right to traverse the area formerly covered by the leasehold right.

LOSS OF INTEREST TO ENFORCE

Loss of interest to enforce differs from acquiescence which, being and aspect of personal bar, requires detriment of some kind. Loss or detriment to the owner of the servient tenement is irrelevant in the context of interest to enforce. Loss of interest to enforce is a familiar concept in the area of real burdens and conditions in the narrow sense, but it is likely to be encountered in connection with servitudes.

EXISTENCE OF AN EXPRESS RIGHT WHERE ONE PREVIOUSLY IMPLIED

Where a servitude of access is established, or is accepted to exist, either by implied grant, or implied reservation, and at some later stage, the proprietor of the dominant tenement acquires a servitude by express grant. Clearly, if the express grant is over the same route as the previously created, there is only one route and whether it exists by implication or expressly is of little practical significance, but it is unlikely that the owner of the dominant tenement would wish to continue to found on the implied servitude right.

STATUTE AND COMPULSORY PURCHASE

The issue of effect of compulsory purchase on servitudes is closely linked to the extinction by statute. A distinction must be made available between a compulsory acquisition of the dominant orservient tenement. In the case of compulsory acquisition of dominant tenement the land will be acquired together with the benefit of servitude unless this is excluded in terms of conveyance. Servitude may be constituted in favour of lands held on a title acquired by compulsory purchase and these servitude may be qualified by positive servitude conditions provided they do not frustrate the statutory purpose of acquisition of the tenement.

By: Navin Kumar Jaggi & Sayesha Suri