Why Servitudes Matter
When buying or selling a property — especially in rural or semi-rural areas — it’s important to understand whether you need access or use of someone else’s land to enjoy your own. If so, legal rights called servitudes may be required to avoid disputes or complications later.
This article explains what servitudes are, when they’re needed, how they’re created, and what happens if they’re missing.
What is a Servitude?
When we think about our property, we think of it as something we own and have the right to use how we please. However, what happens when you must use or access someone else’s property in order to enjoy your own? Put simply, you must ensure that you have the right to do so.
In these scenarios, we consider creating servitude rights.
When Are Servitudes Needed?
A servitude right is a right to do something on property you do not own. These rights can be put in place either by mutual agreement or by evidencing that you (or you along with previous owners) have exercised this right for a period of at least twenty years.
The most common types of servitude rights are for access, such as access to and from a property over a private road. Rights of access can also be granted for the purposes of maintaining, repairing and if necessary renewing pipes, cables or similar service media that serve your property, but run through someone else’s property. Servitude rights can also be granted for use of something such as an shared septic tank, soakaway or private water source.
The most common servitude rights fall into two categories:
1. Rights of Access
If the roads serving a property are not adopted (maintained by the local authority) and you do not own the road, then a right of access must be established. This is often seen in rural properties and these rights can include pedestrian and vehicular access over roads or the right to access and maintain infrastructure like pipes and cables.
It is essential that sufficient rights are established, specifically that pedestrian and vehicular access is permitted so that access can be taken both walking and driving along the road. Where a right of vehicular access is granted, it is widely accepted that a right of pedestrian access is also implied.
2. Rights for Use
Rights for a specific use involve the long-term use of someone else’s property such as garden ground, communal storage, private water supplies and private drainage (i.e., a septic tank and/or soakaway).
Again, these rights are commonly seen in more rural properties, though cases do arise where such rights are needed in more suburban settings.
How Are Servitudes Created?
There are two main ways to create a valid servitude:
1. By Agreement (Deed of Servitude)
A servitude can be granted voluntarily and recorded in the title deeds. This may take the form of:
- A standalone Deed of Servitude, or
- A clause included in the Disposition transferring ownership.
2. By Long Use (Prescription)
If a right has been exercised openly and without challenge for at least 20 years, a servitude may be legally recognised under the Prescription and Limitation (Scotland) Act 1973.
This is known as acquiring a right by prescription and is typically supported by a sworn affidavit from someone who has used the right.
Exercising and Maintaining Servitude Right
Using a servitude often comes with obligations, such as:
- Repairing any damage caused while using the right (e.g. when accessing a septic tank or driving over a track).
- Contributing to maintenance, especially for shared access roads. These costs are usually divided among users, sometimes with the landowner also contributing.
What if a Servitude Right Cannot be Established?
When servitude rights cannot be created or proven, you still have options:
1. Title Indemnity Insurance (a type of insurance)
This type of policy can protect buyers from financial loss or legal risk if servitude rights are missing.
It’s typically arranged by the seller and may be accompanied by an affidavit confirming long-term use while the 20-year prescriptive period is still being established.
2. Negotiating to Purchase the Land
In some cases, you may be able to buy the land in question outright. This depends on the current owner’s willingness and the feasibility of formalising the arrangement.
Final Thoughts
Servitudes may sound technical, but they’re a practical necessity in many property transactions. Identifying whether you need them — and making sure they’re properly documented — is essential to protect your use and enjoyment of your home.
If you’re unsure whether you need a servitude or whether an existing right is secure, speak to your solicitor as early as possible in the transaction.
Contact our residential conveyancing solicitors based in Aberdeen & Stonehaven Today
If you are buying or selling a property and think servitude rights may be required — or if you are unsure whether existing access or use rights are properly documented — our experienced conveyancing solicitors can help.
We regularly advise on the creation, verification, and exercise of servitude rights across a wide range of rural and urban properties. Whether you need to establish access, formalise long-standing use, or explore alternatives such as title indemnity insurance, we can guide you through the process clearly and efficiently.
Our conveyancing solicitors are friendly and approachable –if you have any questions throughout your business with us, we are always available to discuss these matters with you, and we offer a direct line to our partners should you require it.
Call us on 01224 945594 or complete our online enquiry form.