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Debunking negligence’s role in imposing a duty on the servient owner of an easement towards the dominant owner
Griggs, LD, Debunking negligence's role in imposing a duty on the servient owner of an easement towards the dominant owner, Australian Property Law Journal, 23 pp. 183-195. ISSN 1038-5959 (2015) [Refereed Article]
Copyright 2015 Australian Property Law Journal
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The 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.
|Item Type:||Refereed Article|
|Research Division:||Law and Legal Studies|
|Research Group:||Private law and civil obligations|
|Research Field:||Tort law|
|Objective Division:||Law, Politics and Community Services|
|Objective Group:||Justice and the law|
|Objective Field:||Justice and the law not elsewhere classified|
|UTAS Author:||Griggs, LD (Mr Lynden Griggs)|
|Deposited By:||Faculty of Law|
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