An easement of necessity is an easement that is so essential to the enjoyment of the land in question that the land cannot be used without it.
In Sweet v Sommer [2004] EWHC 1504 (Ch); [2004] PLSCS 161, it was held that, for a right of way of necessity to be implied, the dominant land would have to be landlocked without it.
In this case, the claimants owned a house known as Forge Meadow and the defendants owned the Old Forge, a neighbouring property. The only access for pedestrians and vehicles to Forge Meadow was over an area of tarmac belonging to Old Forge. Historically, the two properties had been held in the same ownership, but, when the Old Forge was subsequently transferred out of the title in 1988, the transfer had failed to reserve a right of way over that area in favour of Forge Meadow.
The defendants argued that Forge Meadow had not been rendered landlocked because the owner of Forge Meadow at the time had also owned Old Forge (including the tarmacked area) jointly with his wife and could also gain access to Forge Meadow over other land in his ownership (although this would have required the demolition of a building).
In respect of the first argument, the judge confirmed that the test of whether a person requires a right of way is if he can compel an adjoining owner to grant him a legal right. In Sweet, the owner’s rights to use the tarmacked area as the co-owner of Old Forge had been precarious, because proceedings by his wife could have robbed him of those rights.
With regard to the second argument, the doctrine of implied reservation of an easement of necessity had to be sensitive to the physical as well as the legal facts existing at the date of the relevant grant. The fact that access could be obtained by the destruction of a physical barrier, the continued existence of which was contemplated by the parties, did not prevent the property from being regarded as landlocked for the purposes of the doctrine.
If the dominant land would be rendered landlocked without the easement of necessity, the right of way is not implied for all purposes. In London Corporation v Rigg [1880] 13 ChD 798, Jessel MR said that any right of way must be limited to that which was necessary at the time of the grant. He said that this meant that a right of way would not be implied for any purposes to which the dominant tenement might subsequently be put, but it did not prevent a way being implied for purposes contemplated at the date of the grant but not yet implemented: Pearson J in Serff v Acton Local Board [1886] 31 ChD 679. The foundation of the right will rest upon the intention of the parties to be gathered from all the circumstances: Brightman LJ in Nickerson v Barraclough [1981] Ch 426.
David Williams is a partner in the real estate department at Allen & Overy.
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An easement of necessity is an easement that is so essential to the enjoyment of the land in question that the land cannot be used without it.
In Sweet v Sommer [2004] EWHC 1504 (Ch); [2004] PLSCS 161, it was held that, for a right of way of necessity to be implied, the dominant land would have to be landlocked without it.
In this case, the claimants owned a house known as Forge Meadow and the defendants owned the Old Forge, a neighbouring property. The only access for pedestrians and vehicles to Forge Meadow was over an area of tarmac belonging to Old Forge. Historically, the two properties had been held in the same ownership, but, when the Old Forge was subsequently transferred out of the title in 1988, the transfer had failed to reserve a right of way over that area in favour of Forge Meadow.
The defendants argued that Forge Meadow had not been rendered landlocked because the owner of Forge Meadow at the time had also owned Old Forge (including the tarmacked area) jointly with his wife and could also gain access to Forge Meadow over other land in his ownership (although this would have required the demolition of a building).
In respect of the first argument, the judge confirmed that the test of whether a person requires a right of way is if he can compel an adjoining owner to grant him a legal right. In Sweet, the owner’s rights to use the tarmacked area as the co-owner of Old Forge had been precarious, because proceedings by his wife could have robbed him of those rights.
With regard to the second argument, the doctrine of implied reservation of an easement of necessity had to be sensitive to the physical as well as the legal facts existing at the date of the relevant grant. The fact that access could be obtained by the destruction of a physical barrier, the continued existence of which was contemplated by the parties, did not prevent the property from being regarded as landlocked for the purposes of the doctrine.
If the dominant land would be rendered landlocked without the easement of necessity, the right of way is not implied for all purposes. In London Corporation v Rigg [1880] 13 ChD 798, Jessel MR said that any right of way must be limited to that which was necessary at the time of the grant. He said that this meant that a right of way would not be implied for any purposes to which the dominant tenement might subsequently be put, but it did not prevent a way being implied for purposes contemplated at the date of the grant but not yet implemented: Pearson J in Serff v Acton Local Board [1886] 31 ChD 679. The foundation of the right will rest upon the intention of the parties to be gathered from all the circumstances: Brightman LJ in Nickerson v Barraclough [1981] Ch 426.
David Williams is a partner in the real estate department at Allen & Overy.
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