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If a legal easement fails as it was not registered, can/will a court imply an easement of necessity? In this situation there was an express trust for a right of way, however, it is has not been registered. As the tenement is 'landlocked' would a court imply an easement of necessity even though the original easment was by deed?
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Mimir
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You poor thing. There's 110 views and nobody's replied to your question! It's Land so I'm not surprised :rolleyes:

Original post by Marthis
If a legal easement fails as it was not registered, can/will a court imply an easement of necessity? In this situation there was an express trust for a right of way, however, it is has not been registered. As the tenement is 'landlocked' would a court imply an easement of necessity even though the original easment was by deed?


I shan't delve into the registration and formalities required for easements and how it differs if the servient land is registered or unregistered.

Easements can be implied by necessity (as a grant or reservation) when land would be locked without the right of way (IE: the only way onto the land is over the land of another).

There is a test to satisfy: Manjang v Drammeh (the "Congo" case - where it was held that since the land could be reached by river, there was no right of way of necessity over the neighbour's land necessary, even though this access was almost a complete impossibility); also Adealon v Merton Council (Court refused the argument that 'a more practical access' which required a right of way was not permissible).

Essentially, an easement of necessity is not a rule of public policy, it is based on implied intention of the parties from the circumstances. It is not possible to have a right of way by necessity for use of utilities, for example (Pyrce v McGuinness).

The big question is - can the land be used without the thing being requested? If yes, then there will be no right of way implied by the Court. The right of way must be continuous and apparent, at the time of sale of the servient tenement. IE: It must be historically used permanently and regularly, and seen upon reasonable inspection. The right of way must be necessary for reasonable enjoyment of the land (Millman v Ellis). The RoW will not pass if there is an equally convenient alternative route (Wheeler v Saunders).

If this is simply a question of incorrect registration, examine whether there may be the right of way as an equitable easement (formalities s52 LPA and LRA etc). Although, if the servient tenement has been bought by BPFV without notice of the right of way (or it was not apparent upon reasonable inspection; or the rule in Wheeldon and Burrows/s62 LPA do not apply) the new owner is not bound by the implied right of way.
(edited 8 years ago)

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