Development of the Law of Servitudes in Sri Lanka

Abstract

Sri Lanka is a developing country with a rising population and limited economically productive land.13 Consequently, the development of infrastructure is a priority for which many parcels of land have been and will continue to be acquired by the state. Thus the development of state land is stimulated while the development of private rights in land such as the creation of servitudes attract less attention and are neglected by the state and other public authorities. The Civil War which raged over the whole country affected all aspects of Sri Lankan life such as the economy, social life, infrastructure, human rights as well as private law. In summary each and every aspect of day-to-GD\OLIHRIWKHFRXQWU\¶V citizens were affected by the Civil War which came to an end only very recently. As said earlier this caused a diversion of interest from private ownership to public ownership of land and widely speaking from the private law to the public law sphere. As a result areas of law such as family law, land law, and the law of delict received less attention when compared with the public law areas such as human rights law, administrative law and intellectual property law. Thus while these areas of the law were widely developed, the private law areas had to wait at the back of the queue when legislative innovations were needed, fewer academics selected them for further research and they attracted less public discussion with regard to their future development. The law of property, particularly relating to land and buildings, is a good example of this trend. The new Registration of Lands Act introduced in the country about a decade ago has proved to be riddled with anomalies but neither the Law Commission nor the government has raised a finger to address these anomalies and get the law back on track. Likewise the Apartment Ownership Act in Sri Lanka is subjected to severe criticism, but 13 The Central Bank of Sri Lanka publishes the following figures in 2002: 19.24 million Land area excluding inland waters 62,705 (sq.km.) Density of Population (No. per sq.km)- 303 Central Bank of Sri Lanka 2002. 139 none of the public authorities are interested in bringing about the necessary changes to make it more effective in practice. The more traditional sphere of the law of property comprising, inter alia, the law of servitudes also attracts very little attention in Sri Lanka. This is so despite the fact that the law of servitudes plays an important role in the daily lives of all the citizens of Sri Lanka and that every person in the country experience a servitude daily either knowingly or without knowing that they are actually enjoying a servitude. For example, condominiums and housing schemes are currently quite popular in the country. The residents in such schemes are enjoying servitudes such as running cables, telephone lines and sewerage SLSHVZKLFKUXQWKURXJKWKHLUQHLJKERU¶VZDOOVEXWWKHSUREOHPLVWKDWPRVWRIWKHJHQHUDO public (other than property lawyers) are unaware of the benefits or burdens attached to these rights. Consequently the number of claims or disputes based on the law of servitudes reaching the Sri Lankan courts is presently very small. The parties involved in servitude disputes either attempt to enforce other remedies (typically the general remedy of nuisance or delict) or simply forego the opportunity to grasp the benefits inherent in rights based on servitudes and if a servitude issue reaches the court, the judges seem less inclined to solve the issue in an innovative way. Thus there is little fruitful discussion on servitude issues in the courts and among academics. Another reason is that the foundation or basis of servitude law is Roman-Dutch common law. There is a common myth among some academics and practitioners including judges, that Roman-Dutch law is an ancient law which does not have the ability of adjusting to the needs and demands of modern society. Some judges, in particular, seem to regard it as a fossilized system which is not worth discussing or developing. Because of all these and other reasons the law of servitudes has not developed in Sri Lanka at all in the last few decades and if this continues, this area of law will atrophy in the Sri Lankan legal scene