Adealon International Proprietary Ltd v London Borough of Merton

An easement of necessity is implied from the circumstances and construction of a grant. It is not a free-standing rule of public policy. The classic case is land wholly surrounded by land of the grantor, but the analysis differs where the claimed right is an implied reservation in favour of the grantor. The grantor normally must reserve required rights expressly. Realistic alternative access over third-party land is relevant to whether an easement should be implied, even if that access is not presently enforceable. An easement will not be implied where the evidence does not establish the parties’ common intention that it should exist.

Adealon owned a strip of land adjoining the A24 and separated from High Path by land formerly held in common with the strip. On the transfer of the adjoining land in 1989, Adealon’s predecessor made no express reservation of a right of way. The adjoining land was later acquired and used by the council.

Adealon claimed an easement of necessity over the council’s land for vehicular and pedestrian access to High Path. The Chancery Division dismissed the claim, holding that the strip was not wholly surrounded by the transferred land and that there was no relevant common intention. The appeal concerned the existence of the easement; the alternative question of its scope became immaterial if no easement existed.

1. Appeal dismissed. The claimant had no right of way over the council’s land. The court therefore did not determine whether any right, if created, would have extended to vehicular as well as pedestrian traffic.
2. An easement of necessity is a matter of implication from the circumstances and construction of the grant. It does not arise as a free-standing rule of public policy. The usual elements are common ownership of the two plots, access to one plot from the public highway being obtainable only over the other, and a disposition without an express grant or reservation of access, from which an easement may be implied.
3. The classic model is a plot wholly surrounded by land of the other party. Where the claimed right is in favour of a grantee, the presumption against derogation from grant and the usual construction of a grant in favour of the grantee may support implication even though third-party land forms part of the surrounding area.
4. Different considerations apply to an implied reservation by a grantor. The grantor has no equivalent expectation that rights over transferred land will arise. The ordinary position is that a grantor who requires such a right must reserve it expressly. Realistic alternative access over third-party land is relevant to whether the circumstances justify an exception, even where that access is not legally enforceable at the date of the grant.
5. The court rejected the submission that the claimant was entitled to an easement regardless of possible third-party alternatives. The evidence did not establish a common intention to provide access northwards over the transferred land. The predecessor’s focus had been on possible development and access to the south, and that did not overcome the presumption that a required northern easement would have been expressly reserved.

• Court of Appeal (Civil Division): [2007] EWCA Civ 362. Appeal from the Chancery Division dismissed.
• Chancery Division: HH Judge Kirkham dismissed the claim to an easement of necessity and found no relevant common intention. The citation of that decision is not stated in the judgment.