The adverse effects of the necessary right of way on the right of ownership : an analysis of article 447

Abstract

This dissertation explores in an extensive manner the legal implications of the necessary right of way – a praedial servitude granted by virtue of the law in the specific scenario where a tenement is considered to be locked from a public outlet. The substantial number of cases dealing with the exercise of this servitude have given cause for the Maltese Courts to formulate interpretations of the legal provisions with particular reference to practical situations whilst also considering life’s needs from a modern-day perspective. In doing so, the Courts have consistently made reference to previous judgments in confirming their conclusions whilst adding further observations from their end. This has affected this legal servitude in a positive manner since there are virtually no discrepancies in the application of the relevant articles and their meaning is becoming even less ambiguous which will enable future cases to be concluded more swiftly and intimate to the public at large what to expect out of such a conflict. However, as will be seen in this writing the domestic position is not as perfect as it is depicted. A comparative analysis outlines certain shortcomings whereby a proper exploitation of such analysis will enable the domestic position to be rectified and enhanced.