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
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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