Introduction to Servitudes

What are servitudes

o Part of the law of things, part of the law of property
o Definitions: Marcian (D.8.1.1) - Servitudes attach either to persons, as
in the case of the right of use and usufruct, or to things, as in the case
of rustic and urban praedial servitudes.
o Servitudes are one example of iura in re aliena
In which contexts do servitudes appear?
o Relations between neighbouring landowners; and
o Relations between family members.
Classification of servitudes (during late classical period, Justinian)
o Iura in re aliena include servitudes and contractual proprietary interests
o Servitudes are either praedial or personal
o Praedial servitudes are either rustic or urban
o NOTE: Early in Roman law, praedial rights were recognized. (BUT:
personal servitudes were only realized and recognized later).
Distinctions between personal and praedial servitudes
o Proprietary effect
o Res mancipi (rustic praedial), res nec mancipi (others)
o Type of property subject to the servitude
Praedial only concerns land.
Personal servitudes can involve any type of property
o Minor differences
Personal ends when person dies
One main type of personal (usufruct and variants)/ many types
of praedial
Personal (almost dominus) more extensive rights than praedial
Terminology
o Land servient tenement and the dominant tenement
o Personal usufruct and the usufructuary
Why did Roman law recognise servitudes?
o Promoting greater use of land
o Respecting wishes of parties
o Potential risks?
General characteristics and rules
o No servitude over a servitude
o Servitudes are rights in anothers property
o Servitudes cannot be possessed
Relation to English and Scottish law
o Most Roman part of any area of English law
o Praedial servitudes = easements
o English law in this area underdeveloped until 1700s turned to
textbook written by a Roman law expert - Developed law along Roman
lines

Praedial Servitudes General

Relations between neighbours

Private or public regulation of land use?
o Servitudes only concern private regulation of land use

Rustic Praedial Servitudes

Forms of rustic praedial servitudes

o Principal forms
Iter, actus, via types of rights of way
Iter = standard one --- e.g. go on foot across land, but cant drive
vehicle over property
Actus = super version right to drive a beast of burden + iter
Via = deluxe version use right of way in any way they want
(with some limits)
Aquae ductus concerns water
o Is this a fixed list?
o Res mancipi (were all rustic praedial servitudes res mancipi?)
Rules relating to rustic praedial servitudes
o Servitudes must be economically beneficial to the dominant land
o Servitudes must be exercised reasonably
o Servitudes could not impose active duties
Equivalents in English and Scottish law?
Roman conception of rustic praedial servitudes
o Early law servitudes were corporeal
o Classical law servitudes became incorporeal
Creation
o Express creation
Mancipatio
In iure cession
Deduction
By will
Quasi-traditio plus patentia (informal)
Pact and stipulation (informal)
o Creation through the effluxion of time
Usucapio (till lex scribonia 1st C BC)
Long use giving rise to praetorian protection
Longi temporis praescriptio
Why should rights arise through the effluxion of time?
Why must the enjoyment be nec vi, nec clam, nec precario?
Extinction of praedial servitude
o Destruction of property
o Non-use
o Merger
o Release
Protection
o Ownership level (legal protection offered to servitude)
o Possessory level

Urban Praedial Servitudes

Possible methods of regulating relations between neighbours in urban context

Forms of urban praedial servitude
o Altius tollendo (right to build higher, right to general light at the same
time)
o Ne prospectui officiator (right to unrestricted view)

ne luminibus officiatur (right that light to windows not be obstructed)

stillicidium recipendi (right to discharge rainwater onto anothers land,
had a counter-servitude)
o tignum immittendi (right to insert beam into neighbours wall)
o oneris ferendi (right to have the weight of your building supported by
the other land)
How can we account for the existence of both positive and negative
servitudes?
o Removal of servitude may just be termed as opposite servitude
o Creation of opposite servitude may be a partial release, etc N2 wants
to build a little higher than the previously set limit.
o Use of land reasonably argument if want to go above what is
reasonable
Comparison with English law
o Form of easements (servitudes) recognised more restrictive in
English law than in Roman
o Concept of the reasonable user
o Rules relating to urban praedial servitudes applied to English too
Creation of Urban BS similar to Rustic PS [except for the exclusion of
mancipatio since UBS not res mancipi)
Extinction (including usucapio libertatis) - Romans created a new form of
extinction for UBS. N2 would have to interfere with the servitude for a
sufficiently long period of time (2 years)
Protection
o Ownership protection
o Possessory protection
o
o

Personal Servitudes General

Nature of personal servitudes

Forms of personal servitude
o Usufruct
o Usus
o Habitation
o Operae servorum vel animalium (services of slaves and animals)

Usufruct

Definitions
Terminology
o Usufructuary
o Dominus
Policy of the law balancing rights of usufructuary with the dominus
Rights and duties of the usufructuary
o General rule property rights do not impose duties
o Where there is caution usufructuaria
Take care as a bonus paterfamilias
Ensure that property can be returned at the end of the usufruct
in same condition, allowing for reasonable wear and tear
o Use of property no alteration to property
o Allowing others to use the property (can grant others) but cannot
transfer servitude

Application of the rule concerning servitudes over servitudes

Fruits of the property
Application of the rule concerning servitudes over servitudes
Rule: cant have servitude over servitude for land servitudes.
But for personal servitude is different: if you have a personal
servitude over a praedial servitude
o Fruits of the property
Natural fruits except young of slaves gathering will grant
dominium
Civil fruits
Quasi-usufruct (usufruct over consumable proprety)
Protection
o Remedies available to usufructuary
Actio confessoria / vindication usufructus (if cautio usufructuaria
given to the dominus)
Assert usufructuary right against other. But cannot enforce
usufruct against dominus until caution done
Interdictal protection - Usufruct did not have possession, but still
have access to interdictal protection through some fiction.
Actio furti (for theft) - Usufructuary can sue the thief
Actio utilis (for delict)
o Remedies available to dominus
Actio negatoria against claimed usufructuary
Delict (including theft and Aquilian liability)
Action on the contract (cautio)
Relevance to English and Scottish law trusts and family law similar to
personal servitudes
Creation similar to praedial servitudes
Extinction
o 1st mode: when usufructuary dies
o 2nd mode: remember that usufructuary is very personal. If
usufructuary loses citizenship, usufructuary is technically not the same
person. Servitudes attaches to the personal characteristics of the
usufructuary when the rights were given
o 3rd mode: will lose usufruct rights if not exercised
o 4th mode: if property was destroyed
o 5thmode: if usufructuary becomes dominus (cannot be usufruct over
own land)
o 6th mode: if expressively released by the usufructuary
Fideicommissum - an alternative mechanism for leaving property to a widow
o
o
o

Personal Servitudes Other Than Usufruct

Usus - Modification of usufruct: the right to use the thing without having the
fruits thereof.
Habitatio - A right to the occupation of a house for life.
Operae servorum vel animalium - A right to the services of slaves and
animals.

Contractual Proprietary Interests

Emphyteusis - Grant of land on long lease or in perpetuity upon the payment

of a ground-rent.
Superficies - A right in perpetuity or for a long period over land which did not
belong to the holder.

OCCUPIERS LIABILITY
(ADD IN CASES DURING SUPERVISION PREP)
BACKGROUND

Damage done to visitors on own premises, similar to tort of negligence

failure to take reasonable care.
But important to remember that its a different tort, based on statute need
to study wording of statute to establish liability
Before 1957, the common law distinguished between 4 categories of
entrants:
o contractors
o invitees (invited for matter of mutual interest),
o licensees (entering with permission, e.g. for dinner)
o trespassers (was no duty to take care for trespassers)
Each received different level of protection complicated body of law with
artificial distinctions and attempts at circumventing this rule by the courts in
certain cases. Law Reform Committee in 1954 recommended statutory
intervention.
Today the law is found in:
o The Occupiers Liability Act 1957: deals with the duties owed by an
occupier to his visitors.
o The Occupiers Liability Act 1984: deals with the duties owed by an
occupier to persons other than his visitors.

OCCUPIERS LIABILITY ACT 1957

Scope of OLA 1957

o Section 1(1): The rules enacted shall have effect, in place of the rules
of the common law, to regulate the duty which an occupier of premises
owes to his visitors in respect of dangers due to the state of the premises
or to things done or omitted to be done on them.
o What is danger due to the state of the premises or to things done or
omitted to be done on them?
Distinction between occupancy and activity duties
Does the danger really arise from the state of premises?
Establishing liability under the OLA 1957 - Section 2(1): 4 important points:
An occupier of premises owes the same duty, the common duty of care, to
all his visitors...
o Occupier: OLA 1957, Section 1(2): the persons who are to be treated as
an occupier are the same as the persons who would at common law
be treated as an occupier
Test of control anyone with sufficient degree of control to ensure
safety of premises is occupier (Lord Denning, below case)
Wheat v E. Lacon & Co Ltd (1966)
Abandoned Property
o Premises
Section 1(3): The rules so enacted in relation to an occupier of
premises and his visitors shall also apply, in like manner and to the
like extent as the principles applicable at common law... to regulate

(a) the obligations of a person occupying or having control over any

fixed or moving structure, including any vessel, vehicle or aircraft...
covers runways, railway lines, and more. Movables=clear that
substantial movables (vehicles) can count as premises. But less
substantial (e.g. ladders) also count. But be careful: insubstantial
movables, by letting someone use them, owner may give up
possession, so wont have sufficient degree of control=not occupier
Visitor
Section 1(2): the persons who are to be treated as... visitors are the
same as the persons who would at common law be treated as...
invitees or licensees.
Express permission
Implied permission question of fact. Public places have implied
permission to enter. Also, may be inferred when public frequently uses
premises to knowledge of occupier, who takes no steps to prevent.
But no implied permission if occupier takes preventative steps (e.g.
put sign up)
Exceeding permission permission can be limited by space, purpose
and time [depends on context and circumstances]
Permission given by someone other than the occupier - The key
question is whether the person giving permission has ostensible
authority to do so.
Permission given by employee
Permission given by independent contractor instead of employee
Entry in the exercise of a right conferred by law visitors, despite nonconsent of occupier. Covers policeman with search warrant, fireman
Non-visitors:
Users of public & private rights of way
Those exercising the right to roam under the Countryside and Rights
of Way Act 2000
Trespassers most important category
Common duty of care from occupier of premise to visitor
General OLA 1957, Section 2(2): The common duty of care is a duty
to take such care as in all the circumstances is reasonable to see
that the visitor will be reasonably safe in using the premises for
the purposes for which he is invited or permitted by the
occupier to be there.
The question whether the occupier has breached his duty to the
visitor depends upon the facts of each case and involves a similar
exercise to that undertaken under the tort of negligence.
On the relationship between the common duty of care under the OLA
1957 and the duty of care in negligence, consider:
(in particular instances, how does the duty change?) - Section
2(3): The circumstances relevant for the present purpose include the
degree of care, and of want of care, which would ordinarily be looked
for in such a visitor
Degree of care expected by the visitor is also to be taken into
account.
Known vulnerability of C
Obvious risks

Children - What is the standard of care that is owed to children?

Permission to enter land
Standard of care for children - Section 2(3)(a): An occupier must
be prepared for children to be less careful than adults
o What is sufficient for adult, might not be sufficient for a child.
Jobs carrying special risks - Section 2(3)(b): An occupier may
expect that a person, in the exercise of his calling, will appreciate and
guard against any special risks ordinarily incident to it, so far as the
occupier leaves him free to do it.
Section 2(4)(a): Where damage is caused to a visitor by a danger
of which he had been warned by the occupier, the warning is not to be
treated without more as absolving the occupier from liability, unless in
all the circumstances it was enough to enable the visitor to be
reasonably safe. Occupier can discharge duty of care if he gives a
warning which is enough to enable visitor to be reasonably safe.
Question of fact, requires assessment in each case.
Warning of obvious risk
Liability for independent contractors - Claimant is injured due to
negligence of independent contractor that the occupier has engaged
to do some work on his land.
Section 2(4)(b): Where damage is caused to a visitor by a
danger due to the faulty execution of any work of construction,
maintenance and repairs by an independent contractor
employed by the occupier, the occupier is not to be treated
without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to
an independent contractor and had taken such steps (if any) as
he reasonably ought in order to satisfy himself that the
contractor was competent and that the work had been properly
done.
Break this section down into 3 elements; Occupier will
avoid liability if

He acts reasonably in entrusting the work to an independent

contractor
o Takes reasonable steps to ensure contractor is competent
o He takes reasonable care to check that the work is properly
done
Is there a need to inquire about the independent contractors
insurance position?
Defences - On balance of probabilities D has to manage to satisfy
requirement of each defence. NOTE: partial defence, not complete
defence. Award is just reduced in tort claim.
Contributory negligence
Volenti non fit injuria (to a willing person, no injury is done) - Section
2(5): The common duty of care does not impose on an occupier any
obligations to a visitor in respects of risks willingly accepted as his by
the visitor (the question whether a risk was so accepted to be decided
on the same principles as in other cases in which one person owes a
duty of care to another) Thus, if this is met, Occupier can raise the
defence of Volenti non fit injuria, complete defence.
o

Exclusion of liability - Subject to provisions of common law and

relevant legislation, common of duty of care can be excluded with
conditions - Section 2(1): An occupier owes... the common duty of
care to all his visitors, except in so far as he is free to and does
extend, restrict, modify or exclude his duty to any visitor or visitors by
agreement or otherwise.
Duty can be excluded in 2 ways:
o By a contract
o By a notice which falls short of a contract
Regulation of exclusion of liability at common law - The occupier
must take reasonable steps to bring the exclusion of liability to
the attention of the visitor.
Rationale of conditional licence: The occupier gives licence to the
visitor to enter his land on the condition that he is not liable for
any damage, therefore the visitor cannot make use of licence
without being bound by the condition attached to it.
o Notice must be suitably explicit in its terms
o Note that entry at your own risks DOES NOT FALL UNDER
S2(4a). Not a warning of risks. Entry at your own risks instead
means absolving of responsibility
o Occupier does not have to show that visitor has actually read
the notice. As long as it can be easily read.
Statutory regulation of exclusion of liability - The attempt to
exclude, by contract or notice, liability arising under the OLA
1957 is regulated by legislation.
o UCTA 1977 (non-consumer context) (applies where C is not a
consumer) - UCTA restricts the use of notices or contract terms
which purport to exclude business liability for negligence
where C is not a consumer
Non-consumer context
Negligence - The statutory definition of negligence
includes breach of the common duty of care arising
under the OLA 1957, as well as ordinary negligence
and breaches of contractual duties of care.
Meaning of business liability: UCTA 1977 catches only
attempts to exclude business liability. Business
liability usually means liability for things done or to
be done in the course of a business (s. 1(3)(a))
issue with recreational and educational purposes not
treated as business liability [What about charitable
activities? not resolved by court Cleark and
Schlinsel suggest as long as activity is carried out for
money, regardless of charity, it should be treated as
business liability]
The effect of UCTA 1977
Section 2(1): clauses/notices purporting to exclude
negligence liability for death or personal injury are
invalid.

Section 2(2): clauses/notices purporting to exclude

negligence liability for other loss or damage are
only permitted if reasonable.
o CRA 2015 (consumer context)
Consumer: Section 2(3): Consumer means an
individual acting for purposes that are wholly or mainly
outside that individuals trade, business, craft or
profession
Trader: Section 2(1): Trader means a person acting
for purposes relating to that persons trade, business,
craft or profession, whether acting personally or
through another person acting in the traders name or
on the traders behalf.
Effect of CRA 2015
Excluding liability for death or personal injury
Excluding liability for property damage test of
unfairness (if contrary to good faith, and significant
imbalance to consumer rights to detriment of
consumer)
Damage: Death, personal injury, property damage all covered
Section 1(3)(b): The OLA 1957 rules apply... in respect of damage to
property, including the property of persons who are not themselves
his visitors. (damage to someone elses property)

OCCUPIERS LIABILITY ACT 1984

Background: the common law position
Before: No duty at all to the occupier. Only liable if he intended the injury to the
trespasser. CHANGED IN THIS CASE - British Railways Board v Herrington [1972]
AC 877

Scope of the OLA 1984 Section 1(1) OLA 1984 - (a) whether any duty is
owed by a person as occupier of premises to persons other than his visitors in
respect of any risk of their suffering injury on the premises by reason of any
danger due to the state of the premises or to things done or omitted to be
done on them...
o Persons covered - Those who are not visitors under the OLA 1957 (this
includes users of private rights [such as easements] as well as
trespassers, but s. 1(7) of OLA 1984 excludes persons using the public
highway)
o What is danger due to the state of the premises or to things done or
omitted to be done on them? - Like OLA 1957, it appears that the OLA
1984 applies only to occupancy duties. (not activity duties)
o Type of damage - Only death or personal injury, not property damage (s.
1(8) and s. 1(9) of OLA 1984)
How does the OLA 1984 operate? A 2-stage enquiry:
o Does any duty arise at all? If yes - s. 1(3)
Section 1(3): An occupier of premises owes a duty to another (not
being his visitor) in respect of any such risk as is referred to in
subsection (1) above if

he is aware of the danger or has reasonable grounds to believe that

it exists;
he knows or has reasonable grounds to believe that the other is in
the vicinity of the danger concerned or that he may come into the
vicinity of the danger (in either case whether the other has lawful
authority to be in the vicinity or not); and
the risk is one against which, in all the circumstances of the case, he
may reasonably be expected to offer the other some protection
Awareness of danger - Reasonable ground partly objective and
partly subjective - Swain v Puri [1996] PIQR P442
(requires that the occupier knew of the presence of the trespassers
in the premise) - Donoghue v Folkstone Properties [2003] QB 1008
Obvious dangers (does not impose a duty of obvious dangers)
o What is the scope of the duty? s. 1(4)
Section 1(4): Where... an occupier of premises owes a duty to
another... the duty is to take such care as is reasonable in all the
circumstances of the case to see that he does not suffer injury on the
premises by reason of the danger concerned. (Fair to say that the duty
is not as high as under the OLA 1957. Although the test depends on
several factors, and ALL the circumstances, 2 are particularly relevant)
the seriousness of the danger and
the type of trespasser who is likely to come.
Warning - The duty can often be discharged simply by taking steps
which are reasonable to warn of the danger or discourage the persons
from incurring the risk.
Because duty owed by occupier to trespasser is lower, a warning is
sufficient to discharge the duty of care.
Defences: usual defences apply
o Contributory negligence
o Volenti referred to in s. 1(6): No duty is owed... to any person in respect
of risks willingly accepted as his by that person.
o Exclusion of liability - Unlike the OLA 1957, the OLA 1984 is silent on the
question of exclusion of liability.
Can liability be excluded? Yes and no arguments are present
If yes, does the UCTA 1977 or CRA 2015 apply?