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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 Griggs
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.

History

Publication title

Australian Property Law Journal

Volume

23

Pagination

183-195

ISSN

1038-5959

Department/School

Faculty of Law

Publisher

LexisNexis Butterworths

Place of publication

Australia

Rights statement

Copyright 2015 Australian Property Law Journal

Repository Status

  • Restricted

Socio-economic Objectives

Justice and the law not elsewhere classified

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