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Debunking negligence’s role in imposing a duty on the servient owner of an easement towards the dominant owner
journal contribution
posted on 2023-05-18, 10:38 authored by Lynden GriggsThe rights and responsibilities of servient and dominant owners in respect of right of ways is largely settled. However, one area remains unclear. Can tort law impose positive duties on the servient owner towards the dominant owner via the law of negligence? Whereas some have suggested this is the case, and recent developments in tort support this development, this article, using the paradigm of the agenda setter within property law, argues that the dominant owner should remain as the primary institution making decisions in relation to the easement. It is they that set the agenda on how the right of way is to be used, with this power emanating from the original grant given by the first servient owner. Any extension of negligence law is unnecessary, and has the potential to damage the coherency of established property law arrangements between the dominant and servient owners.
History
Publication title
Australian Property Law JournalVolume
23Pagination
183-195ISSN
1038-5959Department/School
Faculty of LawPublisher
LexisNexis ButterworthsPlace of publication
AustraliaRights statement
Copyright 2015 Australian Property Law JournalRepository Status
- Restricted