Servitudes – The importance of careful drafting

The Sheriff Court's recent decision in the case of EH1 Properties Limited v Robberts helpfully spells out the staged approach that should be taken when interpreting a servitude. The case serves as a cautionary tale of the inclusion of seemingly innocuous words such as "necessary", that can have a limiting effect on servitudes, and explains how such words should be construed where they do feature.

17 June 2024

Servitudes are often an essential part of property ownership: they can enable access to a property that is not located next to a public road, or allow for leading of services to or drainage from a property over someone else's land. Getting the wording of the servitude right is important for making sure that the right can be exercised in the way it was intended. A recent Sheriff Court decision in the case of EH1 Properties Limited v Robberts provides some useful guidance when drafting such rights, helpfully spelling out the staged approach that should be taken when interpreting a servitude. The case serves as a cautionary tale that the inclusion of seemingly innocuous words, such as "necessary", can have a limiting effect on servitudes and explains how such words should be construed where they do feature. 

The Servitude

EH1 Properties Limited owned an area of bare land upon which they proposed to erect six houses. This would require the installation of a private drainage system, which would drain water from the proposed housing site to an existing watercourse located on the land belonging to Mrs Robberts and others via pipework, which would need to be installed under that land. 

To do this, EH1 sought to exercise the following right of servitude:

"…a heritable and irredeemable servitude right to install, if necessary, any part of a private drainage system which may be required for any building which may be erected on the said subjects…"

The question for the Court was whether this servitude permits EH1 to install the proposed drainage system.

Interpreting the Servitude 

There are a number of factors that can affect a servitude's meaning. 

(i) Reasonable and fair 

Firstly, servitudes should be construed in a manner that is "reasonable and fair". In considering the present servitude, the Court considered that the word "necessary" qualified the exercise of the servitude such that it should only be exercised when it is needed in order to achieve a particular result. The result, in this case, being the installation of a private drainage system. 

However, based on evidence from both parties, it appeared there were other feasible methods by which water could be drained from the land in question which did not require the exercise of the servitude, meaning the "necessity" test was not met. 

Although EH1 pointed out that the proposed drainage system may be a necessary condition of its planning permission, this did not impact on how the servitude wording should be interpreted. The servitude simply required the installation to be necessary for drainage purposes, not for the purposes of complying with a planning permission. 

(ii) Favouring the least burdensome interpretation 

The use of the words "any building" (not buildings) was considered next. Mrs Robberts argued this restricted the servitude to one building only, while EH1 considered that the use of the word "any" meant the servitude ought to be interpreted in such a way that allowed more than one building on the land entitled to the benefit of the servitude, particularly in light of how large the proposed housing site was. Finding there to be merit in both arguments, the Court concluded that the phrase was, therefore, ambiguous. 

Having established ambiguity, following the rules of interpretation, the court was bound to adopt the least burdensome interpretation of the servitude. 

However, in this instance, the Court did not consider either interpretation to be more or less burdensome than the other. The drainage system was to deal with surface water drainage, i.e. water that falls from the sky, meaning there wouldn't necessarily be any more surface water flowing through the drainage system by having more houses on the land to which the system is connected. Therefore, it could not be said that restricting the servitude to one house only would be less burdensome for the defender. 

(iii) Context and surrounding circumstances

As the "burdensome test" did not resolve the ambiguity, the Court turned to consider the surrounding circumstances and background against, which the servitude was granted. 

The servitude was granted in 1998, to EH1's predecessors, who were a couple that had been living in a caravan on what was now the proposed housing site. Upon hearing a range of evidence, the Court concluded that the servitude was initially granted to the couple to ensure that they would have adequate drainage in the event that they decided to build and move into a house on the site. Therefore, when the servitude was granted, the granter only envisaged one house on the land, not a commercial development. 

Considering the context and the fact that servitude was ambiguous, the Court favoured Mrs Robberts’ position and concluded that the servitude was originally intended to permit drainage across the land for one building only and could not be used to facilitate the proposed private drainage system, which would be used by six houses.

EH1's case therefore, failed on two counts, firstly, the failure to demonstrate that the exercise of the servitude was necessary, and secondly, that the proper interpretation of the servitude permits drainage across the defender's land for one building only.

Avoiding Confusion and Unintended Consequences 

Clearly, where there is ambiguity in a servitude, the Courts may consider the context in which the servitude was granted, even if that occurred several years previously. To avoid this having any unintended consequences, servitudes should be drafted with care and clarity from the outset. In particular, drafters ought to be cautious of the use of the words, such as necessary, that may introduce conditionality within the servitude or unintentionally limit its application. 

For any enquiries, please do not hesitate to contact a member of our specialist Property disputes and Rural disputes team or get in touch directly with Stephanie Hepburn.


This article was co-authored by Trainee Alannah O'Hara