Private Law Theory

ABSTRACT
This article re-examines the consensus, seen across multiple common law jurisdictions, that easements of necessity rest on intent rather than public policy. The article argues that the consensus is incorrect and that public policy better explains the outcome in cases of strict necessity and offers a better fit with property theory. In order to make these arguments, the article closely re-reads the leading decisions on easements of necessity to show that strict necessity is often lacking and where strict necessity is present, public policy is the better explanation for the outcome.

Hamill, Sarah E, Public Policy or Intent: The Rationale Underlying Easements of Necessity (2019). 42(1) Dublin University Law Journal 63-87, 2019.

First posted 2021-03-27 09:00:03