Court Imposes “Easement of Necessity”

A man named Ben owned certain land that he decided to subdivide into Parts 1 and 2. When he died, Part 1 was conveyed to his daughter, and Part 2 was conveyed to his wife Sheila, under the terms of Ben’s Will. Sheila used Part 2 to secure two mortgages with a lender Bank, both of which went into default. When the Bank took steps to sell Part 2 under its power of sale, the court was asked to rule on an issue relating to access to the property.

The problem was this: due to its physical location, Part 2 was landlocked – with no access other than by water – unless an easement could be said to exist over Part 1 that now belonged to Ben’s daughter. Unfortunately, when making the arrangements to have his estate transfer Part 2 to Shelia, Ben did not grant such right-of-way over Part 1. The Bank, now poised to sell under a power of sale, requested a court order to declare that such an easement exists in favour of Part 2.

Historically, since the land was subdivided, Sheila and Ben had accessed their residence on Part 2 by travelling over the adjacent land also owned by Ben (or his corporations) at the time. But after Ben’s death, that adjacent land had now also been sold to others, as had all of the surrounding properties originally owned by Ben that might otherwise allow for Sheila’s access to Part 2.

In entertaining the Bank’s request, the court examined the law on what are known as “easements of necessity”. These legal constructs arise from public policy dictating that land is intended to be used. Whenever a piece of land is divided into separate lots with one of them being conveyed to a new buyer, the presumption is that he or she will have access to the lot; it should not be landlocked and inaccessible. If the situation is otherwise, the law may step in to allow for the new owner’s reasonable enjoyment of the purchased land by implicitly granting him or her an “easement of necessity”, enabling the buyer the needed access via the adjacent property. Such easements can be granted regardless of what the original owner’s intentions may have been, and regardless of whether he or she keeps the adjacent land.

The court added that this legal concept begs the question of what constitutes a lack of “access” for any particular property; the determination must be made in the context of each property’s own unique conditions. For land with access by water only, for example, there is no universal test: the outcome may vary with the circumstances. Simply because land is technically accessible by water does not mean that a court is prevented from declaring that an easement of necessity exists. Rather, the test is “whether water access is sufficient to make unnecessary the easement of necessity that is otherwise necessary for the reasonable enjoyment of the property.”

On this point, that test of “necessity” is similarly nebulous: mere inconvenience by the new buyer, for example, is not enough to warrant the imposition of an easement, nor is the fact that he or she prefers to access the property by a specific route.

The court concluded that the modern test is not whether the land is rendered “useless” or “worthless” without the contemplated easement being recognized. Instead, the contemporary legal threshold is closer to one of “practical necessity”.

Here, but for the requested easement, the only other access to Part 2 would be by water, which was neither viable nor practical in light of the steep shoreline of the land. There was practical necessity to make the order; the court granted an easement of necessity over Part 1 of the land, in favour of Part 2, with a separate trial being ordered to determine where the best, least intrusive location of that easement should be. See: Toronto-Dominion Bank v. Wise, 2015 (ONSC).