Private Law Theory

Abstract:
The aim of this contribution is to present a constitutional analysis of the legitimacy and justifiability of the common law principles that regulate the judicial granting of a right of way of necessity. A right of way of necessity is a peculiar servitude of way that enables the owner or user of landlocked land (dominant tenement) to gain access to public transport network systems over neighbouring land (servient tenement) in a situation where the dominant tenement is geographically cut off from any access to a public road or where the available access is not sufficient for optimal use and exploitation of the dominant land. More particularly, the right of way of necessity is characterised by the circumstance that the servitude is imposed by judicial order (ex lege), based on compliance with certain common law requirements, without the permission of the servient owner and even against his will.

van der Walt, AJ and Raphulu, TN, The Right of Way of Way of Necessity: A Constitutional Analysis (August 5, 2014). Journal of Contemporary Roman-Dutch Law, Vol. 77, p 468-484, 2014.

First posted 2015-01-07 13:40:25