The key difference is that a wayleave does not have to comply with any strict rules of creation. Wayleaves provide rights similar to those found in servitudes but can be created without the need to identify a benefited property. Wayleaves are binding for a specified period and against successors in title rather than being personal to a grantor.

Reminder of what a servitude is

A servitude is a real right which attaches to land and is independent of ownership. It can only be created over one property (the burdened property) in favour of another property owned by a separate legal person (the benefited property). There are a number of ways to create a servitude beyond a specific grant or reservation, but that is the subject for another blog. The owner of the servient tenement (or burdened property, over which the servitude is exercised) does not need to take any active steps to facilitate any party to exercise the servitude unless a formal servitude deed obliges them to do so. The owner of the benefited property has to exercise the right in a way that is least burdensome to the use of the burdened property.

The burden on the servient tenement cannot be increased beyond the entitlement originally granted. For example, a servitude right of pedestrian and vehicular access to and from a cottage cannot be used to permit construction traffic to the cottage site when it is demolished and 20 flats are being erected on the site.

Servitudes don't always work for utility supplies

One of the key requirements for the creation of a servitude is that the person seeking to acquire the right needs to own a piece of land to comprise the benefited property. This can cause problems where the right is needed by a service or utility provider - who wants to lay cables over, under or through ground owned by someone else. The service provider will often not own any of the surrounding land area which could be treated as the benefited property for the servitude right.

In addition, the creation of a servitude requires the co-operation of the owner of the land to be burdened by it - what if that owner won't agree?

And so to solve this, wayleaves are used.

What is a wayleave?

The word wayleave is not a recognised legal term in Scots law. However, it has become a familiar expression and describes a permission to pass over property (be that land or buildings) for a particular purpose.

Generally wayleaves are a statutory creation and are recognised as a standard term where public bodies, authorities and utility providers require rights in order to provide their services to the public. The power can be roughly compared to powers of compulsory purchase.

When are they used instead of a servitude?

Use of statutory powers

Initially the rights were given to public bodies in terms of appropriate legislation (such as the Electricity Act and the Telecommunications Act) but over the years, with privatisation of the utilities, it is now private companies who benefit from the rights - still used in the name of public interest.

A wayleave may be acquired by way of agreement between the parties rather than by compulsion. However, as a result of the statutory background, the utility provider always has the power to require a land owner enters into a necessary wayleave.

If you have any questions regarding wayleaves or servitudes, please don't hesitate to contact our Property and Development team.