Tenement meaning

This Checklist examines how easements come into being and whether they must, or may, be entered on the register at HM Land Registry. It addresses the following principal topics: Does an easement exist? Can it amount to a legal easement? Was the easement made by express grant? Is the express right set out in a deed of grant or a transfer? Is the right included within a lease? Has the easement arisen by implied grant? Has the easement arisen by presumed grant? Is the right merely equitable? Is the easement an overriding interest? Rights distinct from easements An application to HM Land Registry to register an easement may need supporting evidence of third party consents, or proof of compliance with a restriction on title. These matters are not explored in detail in this Checklist; see Practice Notes: Mortgages and land—dealings with land subject to a mortgage or legal charge, and Land registration—restrictions on title under...

This Checklist outlines the matters to weigh up and assess when preparing real burdens and title conditions in dispositions in Scotland. It looks in particular at real burdens concerning restrictions on use, alterations and works, as well as personal real burdens. For detail on the nature of real burdens and how they are created and construed, see Practice Note: Real burdens in Scotland—creation and interpretation. For real burdens addressing maintenance duties, see Practice Note: Real burdens dealing with maintenance obligations in Scotland. In this Checklist, the land affected by the burden is called the ‘burdened property’ and the land that enjoys the burden is the ‘benefitted property’. Drafting considerations When preparing a disposition, first ask whether imposing real burdens is required. It might be adequate simply to depend on: common law, e.g. the common laws regarding boundaries planning law (which will have a significant effect on proposed land uses) the Tenement Management Scheme (brought in by section 4 and Schedule 1 to the...

When can a developer drain onto neighbouring land without permission? (Bernel v Canal & River Trust) Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch) What are the practical implications of this decision? The riparian claim and the prescriptive claim presented quite different factual and legal issues. Both aspects of the dispute will be of real interest to property practitioners. To determine the riparian issue, the judge had to set out and apply, carefully and in some detail, the law on when an intermittent or occasional flow is sufficient to amount to a natural watercourse, and when it is not. Because extensive rights accompany the presence of a natural watercourse on or adjoining land (the riparian rights), this boundary is legally significant, and not always straightforward to draw in practice on the ground. Although the prescriptive claim failed on the facts, the judge also indicated what additional findings he would have made if there had been sufficient use. He examined how to identify the physical extent of...

In this issue: Leasing property Transferring property Property development Environment, energy and buildings Property taxes Property in Scotland LexTalk®Property: a Lexis®Nexis community Further property updates this week Daily and weekly news alerts Trackers New Q&As Leasing property Competing views on a tenant’s ‘holding’ in renewal claims for business tenancies arose in Sainsbury's Supermarkets Ltd v Medley Assets Ltd [2024] Lexis Citation 358, a contested application under the Landlord and Tenant Act 1954 (LTA 1954). The landlord relied on ground (f), contending it reasonably needed possession to undertake substantial works. A significant subsidiary issue was the scope of the tenant’s holding, turning on the meaning of that expression in LTA 1954, s 30, and whether it matched or differed from ‘holding’ in LTA 1954, s 32 (property to be comprised in any new tenancy). This, in turn, framed the breadth of the court’s inquiry into what works were practically achievable. The court concluded that...

This Practice Note examines how easements are acquired through prescription (long use) at common law, via the doctrine of lost modern grant, and by statute (pursuant to the Prescription Act 1832). It explains how a claimant can satisfy each route, the scope of the right obtained, and further matters to weigh where the dominant or the servient tenement is let on a tenancy at the relevant time by either party. It also briefly addresses the question of whether a long-used easement can be safeguarded by registration at HM Land Registry. Presumed grant An easement can be founded by long use: at common law under the lost modern grant doctrine (a well-known branch of common law prescription) by statute (under the Prescription Act 1832 (PA 1832)) The law of prescription is a means of proving an easement, not of creating it. It ultimately rests on a presumed grant, i.e. that the right validly and properly existed before the claim is brought,...

Ownership, leasing or any other lawful use of land typically depends on being able to get to it, so that the land can be enjoyed. The public may use roads and footpaths adopted by local authorities and, where a plot abuts an adopted road, gaining access is usually uncomplicated. Where access must cross another person’s land, recourse to common law or statute might be available, but buyers will ordinarily prefer a formal arrangement—such as a contractual right or servitude—where none already exists. If land is held in common or jointly, each owner may reach and traverse it without needing separate access rights. This Practice Note outlines the typical access questions that can arise in Scottish property deals and the matters a seller’s and a buyer’s solicitor may need to consider. The same themes can arise in lease transactions between landlord and tenant solicitors; for simplicity in this Practice Note, the parties are described as ‘seller’ and ‘buyer’ and the deal as a sale or purchase. Access from a publicly...

This glossary outlines commonly used terms and phrases in Scottish property law, together with the closest England and Wales equivalents (where appropriate), and signposts guidance on differences between Scottish property transactions and law, as well as useful property-related websites. A non domino disposition Meaning A disposition granted by someone with no title to the property. Formerly, this could regularise a defective title where, after registering a non domino disposition, the grantee possessed the property openly, peaceably and without judicial interruption for ten years. Since 8 December 2014, with the commencement of the Land Registration etc (Scotland) Act 2012 (LRE(S)A 2012), a party seeking to obtain title to land where no owner can be traced must comply with the prescriptive claimant provisions in LRE(S)A 2012, ss 43–45 before submitting an a non domino disposition for registration. Nearest English equivalent None, although possessory title is similar. Action of specific implement Meaning A court action seeking an order compelling a party to perform a specified...

An easement is a right enjoyed by one piece of land (the dominant tenement) over adjacent land (the servient tenement). There are numerous varieties of easement; rights of way are the best known, yet they cover rights to take water, and rights relating to storage, parking, access and the like. Easements are attached to the land and are registrable, which means they will bind later owners of the servient land and will continue to benefit the dominant land even following a change in ownership, making them proprietary rights, as opposed to a licence personal to a landowner from time to time...

Easements—generally An easement is an intangible right enjoyed by the holder of a legal estate (dominant tenement) over land owned by another person (servient tenement), and it binds successors in title also. Easements are commonly positive, granting the dominant proprietor permission to go onto or use the servient land in some manner (e.g. a right of way). They may, however, be negative, as such restraining activities on the servient land and thereby conferring upon the dominant owner a right to receive something from that land (e.g. a right to light)...