Adealon International Proprietary Ltd v London Borough of Merton [2007] EWCA Civ 362

Adealon International Proprietary Ltd v London Borough of Merton [2007] EWCA Civ 362

Property Law – Easement – Right of Way – Way of Necessity

Facts:

Adealon’s predecessor in title Boastdean, owned land by a highway, but there was no access to this road from Boastdean’s property. In 1989, Boastdean sold part of its land to an associated company, Kempstone, which later sold that land to Merton Council. Merton Council took possession of the whole site without realising part of it was still owned by Boastdean. They built a day-care centre on the land and used part of Boastdean’s land as the garden and car park. Boastdean sold the rest of their land to Adealon. Adealon claimed it was entitled to an easement of necessity for pedestrian and vehicle traffic to the highway over the Council’s land.

Issues:

Whether there was a way of necessity over the council’s land that could be implied.

Held:

The appeal was dismissed. In considering whether there is an implied easement of necessity, the presumption must be that any rights the grantor required over the land when it was transferred would have to be included in the conveyance and consequently, expressly reserved in the grant. The burden was held to lie with the grantor to establish an exception to this rule. If there was no normal expectation for access, any easement would be on the basis of an implied reservation and not an implied grant. There had been no reservation for a specific right of access to the highway when Boastdean transferred the land to Kempstone. The possibility of future access to the south was speculative. That did not show that the parties intended to reserve access to the north over the land sold to Kempstone. The Court of Appeal therefore found no easement and did not need to decide what traffic it would have permitted.

Reported citations: [2007] 1 WLR 1898, [2007] WLR 1898

Source: Full judgment