THE SCOPE OF COMPENSATION PAYABLE FOR THE USE OF A NECESSARY WAY ACCORDING TO THE CASE-LAW OF THE SUPREME COURT OF GEORGIA

Ana Chogovadze     [email protected]

 

Abstract

The article offers a dogmatic-legal and comparative-legal analysis of one of the specific mechanisms for restricting the right to property - determining the amount of compensation payable for establishing and exercising a necessary way- under Article 180 of the Civil Code of Georgia. Although the right to property is protected by the Constitution of Georgia, the European Convention on Human Rights, and the Civil Code, it may nonetheless be restricted on the basis of strictly defined legal grounds. In this context, the restriction concerns the functional use of a neighbouring parcel of land. Article 180 of the Civil Code of Georgia establishes the essence of the obligation of tolerance and the right to claim compensation; however, it does not set out criteria for determining the amount of such compensation, leaving the assessment entirely to the courts. Consequently, judicial practice constitutes the sole source for identifying the main standards for setting the compensatory amount, allocating the burden of proof, and ensuring the proportionality of compensation.

The aim of the research is to identify, through an analysis of judicial decisions, the factors that determine the amount of compensation payable for the use of a necessary way, its proportionality to the scope of the restriction, the periodicity of payment, and the distribution of the burden of proof between the parties in the process of determining compensatory damages. The article examines decisions of the Supreme Court of Georgia, as well as the relevant provisions of the Civil Code of Georgia and the German Civil Code. The research seeks to assess the legal logic underlying the mechanism for determining compensation and the balance of interests between the parties.

Keywords: necessary way, passage of access, compensation, public road, servient owner, dominant.