The end of the road for human rights in private landowners' disputes?

Article


Pascoe, S. 2017. The end of the road for human rights in private landowners' disputes? The Conveyancer and Property Lawyer. 81 (4), pp. 269-286.
TypeArticle
TitleThe end of the road for human rights in private landowners' disputes?
AuthorsPascoe, S.
Abstract

This article examines whether, and if so, to what extent human rights are progressively transforming the juridical basis of the law in relation to private landowners. First, the article analyses the vagaries which undermine a coherent framework for horizontality and erode stability and predictability in private land law disputes. It is argued that McDonald v McDonald is applying a species of negative obligation model with the consequence that horizontality will only apply in non-regulatory and non-consensual circumstances. Various grounds for cognitive dissonance between the analysis in McDonald and normative adjudicative reasoning are explored. It is suggested that judges may be evolving a form of contextual horizontality to deal with complexities involved in difficult circumstances. Secondly, it is examined whether vulnerability as a heuristic device can result in increased human rights protection for occupiers of privately owned land. Case law is analysed to demonstrate that flexibility to help the vulnerable is evident in deserving cases.

LanguageEnglish
PublisherSweet and Maxwell
JournalThe Conveyancer and Property Lawyer
ISSN0010-8200
Publication dates
Online09 Aug 2017
Publication process dates
Deposited04 Sep 2017
Accepted06 Jun 2017
Output statusPublished
Accepted author manuscript
License
Copyright Statement

This is a pre-copyedited, author-produced version of an article accepted for publication in The Conveyancer and
Property Lawyer following peer review. The definitive published version Pascoe, Susan, The end of the road for human rights in private landowners' disputes?, Conv. 2017, 4, 269-286 is available online on Westlaw UK.
An Attribution-NonCommercial CC BY-NC use license applies to this manuscript version.

Web address (URL)https://uk.westlaw.com/Document/IF76D1FE07D0211E79BD5DE1F093B20E7/View/FullText.html
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https://repository.mdx.ac.uk/item/8726v

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