Part 7

Servitudes

Positive servitudes

Creation of positive servitude by writing: deed to be registered
75
1
A deed is not effective to create a positive servitude by express provision unless it is registered against both the benefited property and the burdened property.
2
It shall be no objection to the validity of a positive servitude that, at the time when the deed was registered as mentioned in subsection (1) above, the same person owned the benefited property and the burdened property; but ... the servitude shall not be created while that person remains owner of both those properties.
3
Subsection (1) above—
a
is subject to section 3(1) of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (creation of positive servitude by 20 years' possession following execution of deed); and
b
does not apply to servitudes such as are mentioned in section 77(1) of this Act.
S. 75 excluded (24.7.2006) by Waverley Railway (Scotland) Act 2006 (asp 13), s. 44(2) (with ss. 50(2), 51)
S. 75 excluded (15.1.2007) by Glasgow Airport Rail Link Act 2007 (asp 1), s. 42(2) (with s. 50)
S. 75 excluded (19.4.2007) by Edinburgh Airport Rail Link Act 2007 (asp 16), s. 55(2) (with ss. 52, 60)
S. 75 excluded (8.5.2007) by Airdrie-Bathgate Railway and Linked Improvements Act 2007 (asp 19), ss. 37(2), 54(2) (with ss. 48, 59)
S. 75 excluded (1.6.2010) by The Network Rail (Waverley Steps) Order 2010 (S.S.I. 2010/188), art. 31(3)
S. 75(1) excluded (3.2.2011) by Forth Crossing Act 2011 (asp 2), ss. 27(2), 80(2) (with ss. 69, 78); S.S.I. 2011/38, art. 2, sch.
Words in s. 75(2) repealed (8.12.2014) by Land Registration etc. (Scotland) Act 2012 (asp 5), ss. 122, 123, sch. 5 para. 43(8) (with s. 121, sch. 4 paras. 13, 16); S.S.I. 2014/127, art. 2