ElectronicjournalofcomparatiVeLaw,vol.8.3(october2004),<http://www.ejclorg/> for example, if the vassal wishes to build a garage and a real burden prevents this, he must pproach his superior for permission. The superior will usually then demand money. Their agreement will then be recorded in a document known as a minute of waiver. In recent years, however, the ability of a superior, who had no local connection to the property,to make money out of a vassal who wished to carry out a simple change to his property, was abused The power to grant minutes of waiver in some quarters became merely seen as an income-generating exercise. 6 Removing the feudal system was recognised as the way to stop such practices There were, however, genuine benefits of using real burdens, whether as part of a feudal grant or otherwise, and the reform process needed to take account of these. In Scotland the list of servitudes is in practice closed. Despite some jud icial pronouncements to the contrary, when a case has turned on the point, the courts have been unwilling to extend the list recognised by Roman law. Thus, pleas in the early 1990s that servitudes of sign hanging 8 and electricity should be approved have failed because they are not on the established list More recently, there has been debate over whether the right to park a vehicle on another arty's land can be constituted as a servitude. The latest judicial opinion, from Lady Smith sitting in the Outer House of the Court of Session is that it cannot: I cannot conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access. "20 The Scottish common law position is at odds with that in most other countries. 21The resistance by the courts has been fuelled mainly by the fact that servitudes do not need to appear on the public register to bind successors. It is competent to create a servitude by exercise alone for twenty years under the statute relating to positive prescription. 22 In dd ition, an unregistered deed followed by mere exercise of the servitude will also suffice Such servitudes may not be transparent to a purchaser. 3 To deal with the problem of the See Harris v Douglass 1993 SLT (Lands Tr)56 and Strathclyde joint Police Board w The eldershi Estates Ltd 2002 SLT ( Lands Tr)2 Notably Dyce v Hay(1852)1 Macq 305 Mendelssohn v The wee Pub Co Ltd 1991 GWD 26-1518 19 Neilly Scobbie 1993 GWD 13-887 0 Nationwide Building Society v WalterD Allan Ltd, 4 August 2004(available at www.scotcourtsgovuk/opinions/sm12207html).Thecasereviewstheearlierauthorities For example, France(see Code civil art 186), Germany(see BGB art 1018)and South Africa(see PJ Badenhorst, J M Pienaarand H Mostert, Silberberg and Schoeman's The Law of property(4th edn, 2003), LexisNexis, Durban, para 14.1) Prescription and Limitation( Scotland) Act 1973, s 3(2) For example, a right of way may only be exercised occasionally 4Electronic Journal of Comparative Law, vol. 8.3 (October 2004), <http://www.ejcl.org/> 4 for example, if the vassal wishes to build a garage and a real burden prevents this, he must approach his superior for permission. The superior will usually then demand money. Their agreement will then be recorded in a document known as a ‘minute of waiver’. In recent years, however, the ability of a superior, who had no local connection to the property, to make money out of a vassal who wished to carry out a simple change to his property, was abused. The power to grant minutes of waiver in some quarters became merely seen as an income-generating exercise.16 Removing the feudal system was recognised as the way to stop such practices. There were, however, genuine benefits of using real burdens, whether as part of a feudal grant or otherwise, and the reform process needed to take account of these. In Scotland, the list of servitudes is in practice closed. Despite some judicial pronouncements to the contrary,17 when a case has turned on the point, the courts have been unwilling to extend the list recognised by Roman law. Thus, pleas in the early 1990s that servitudes of sign hanging18 and electricity19 should be approved, have failed because they are not on the established list. More recently, there has been debate over whether the right to park a vehicle on another party’s land can be constituted as a servitude. The latest judicial opinion, from Lady Smith, sitting in the Outer House of the Court of Session is that it cannot: ‘I cannot conclude that Scots law recognises, in principle, a servitude right of parking independent of any right of access.’20 The Scottish common law position is at odds with that in most other countries.21 The resistance by the courts has been fuelled mainly by the fact that servitudes do not need to appear on the public register to bind successors. It is competent to create a servitude by exercise alone for twenty years under the statute relating to positive prescription.22 In addition, an unregistered deed followed by mere exercise of the servitude will also suffice. Such servitudes may not be transparent to a purchaser.23 To deal with the problem of the 16 See Harris v Douglass 1993 SLT (Lands Tr) 56 and Strathclyde Joint Police Board v The Elderslie Estates Ltd 2002 SLT (Lands Tr) 2. 17 Notably Dyce v Hay (1852) 1 Macq 305. 18 Mendelssohn v The Wee Pub Co Ltd 1991 GWD 26-1518. 19 Neill v Scobbie 1993 GWD 13-887. 20 Nationwide Building Society v Walter D Allan Ltd, 4 August 2004 (available at http://www.scotcourts.gov.uk/opinionsv/smi2207.html). The case reviews the earlier authorities. 21 For example, France (see Code civil art 186), Germany (see BGB art 1018) and South Africa (see P J Badenhorst, J M Pienaar and H Mostert, Silberberg and Schoeman’s The Law of Property (4th edn, 2003), LexisNexis, Durban, para 14.1). 22 Prescription and Limitation (Scotland) Act 1973, s 3(2). 23 For example, a right of way may only be exercised occasionally