Court Clarifies "Easement of Necessity" Remedy

A man named Ben Wise owned lakefront property that he subdivided into Parts 1 and 2.  After his death in 2002, Part 1 was conveyed to Ben’s daughter, and Part 2 was conveyed to his wife Sheila, in keeping with the terms of his 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.

Specifically, Part 2 was landlocked – with no access other than by water – unless the court could be persuaded to declare an “easement of necessity” to exist over Part 1 (now owned by the daughter), in favour of Part 2 (belonging to Sheila). While still alive, Ben neglected to reserve such a right-of-way in his estate plans. The Bank, now poised to sell Part 2 under a power of sale, asked for such a declaration to make the property’s sale more viable.

At a first hearing, the application judge agreed to declare that an easement existed over Part 1 in favour of Part 2. The judge found that although there was technically access to Part 2 from the direction of the lake, the water access was “impractical”.  Based on that inconvenience, an easement of necessity could legally be granted over Part 1. The judge emphasized that "[p]ublic policy must trump the intentions of individual landowners”, adding that the common-law requirement of absolute or strict necessity had developed into a rule of “practical necessity”. A separate trial was directed to determine the easement’s location if the parties could not agree.

The daughter appealed the application judge’s decision. The Appeal Court granted the appeal.

Whether there is a current need for an easement of necessity was to be determined at the time of Ben’s initial grant. The test was not whether access would be inconvenient without the easement; rather, the implied easement must be necessary to use or access the property. In other words, the test in Ontario is not one of “practical necessity”, but rather one of “strict necessity”, as assessed at the time of Ben’s grant.

The Court of Appeal emphasized a key legal principle:  Water access to property, no matter how inconvenient or impractical, defeats a claim of necessity. It is irrelevant that water access had never actually been used before; all that matters is that it is available as a means of access. At the time of Ben’s grant, there was water access to Sheila’s Part 2, and it allowed for the reasonable enjoyment of the property. The application judge had failed to apply the test of strict necessity, so the prior ruling declaring an easement to exist was overturned. See: Toronto-Dominion Bank v. Wise, 2016 ONCA 629.

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