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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9977
Experience:  30 years as a practising solicitor.
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Where a Deed of Servitude exists that grants the owner of the

Resolved Question:

Where a Deed of Servitude exists that grants the owner of the Benefited Property right of access over part of the Burdened Property, what rights/redress has the owner of the Benefited Property in a situation where circumstances affecting the Burdened Property make it impossible to exercise that right of access (e.g where the access-area has been physically extinguished)?
Submitted: 6 years ago.
Category: Scots Law
Expert:  JGM replied 6 years ago.
Thank you for your question.

Can you give full details of the circumstances of the extinction of the right of access?
Customer: replied 6 years ago.
Pavement area in question has been demolished by sea-storm that also caused extensive collateral damage to both Burdened and Benefited Properties. Whilst not caused by direct action of Burdened Property Owner the extinction of the right of access has meant that the owner of the Benefited Property cannot exercise his right under the Servitude Deed to get access for Contractors to carry out emergency repairs to his own property, to his possible detriment. Does this not also make null and void any or all of the Servitude Deed Conditions imposed on the owner of the Benefitted Property whilst ever the right of access over the Burdened Property is denied?
Expert:  JGM replied 6 years ago.

Thank you. The law is that a servitude will be extinguished upon the total destruction of either the dominant or servient tenement. If the destruction is only temporary, however, and the former state of affairs is restored by rebuilding then the servitude is regarded as suspended rather than extinguished and it will automatically revive. No other burdens or servitudes granted to either party are affected insofar as these remain exercisable.


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