Published: Fri, 12 Oct 2018
Borman v Griffith  1 Ch 493
Property Law – Easement – Contract for Lease – Way of Necessity
Borman leased a garden which included a paddock, orchard and adjoining gardens, on a long term basis. The agreement did not expressly reserve a right of way to Borman. The premises were located in a large park which was only accessible through one road, until a second road was built. Borman continued to use the main entrance road to access the rental premises. The entrance had been leased to Griffith for his property. Griffith claimed that Borman was obstructing the use of his drive.
Whether there was an implied right of way over the driveway to access the premises. Whether s 205 of the Law of Property Act 1925 could be interpreted to include an implied easement to allow for easy access to premises.
The appeal was allowed in part, holding that where a lease exceeding three years, there was no “assurance of property or of an interest therein” within the meaning of s 205(1)(ii) of the Law of Property Act 1925. As the property had been demised with no provision for a right of way for access to the property, a right to use the driveway must be implied. Wheeldon v Burrowswas applied; where implied easements were necessary to the reasonable enjoyment of the property granted. Further, there was nothing in the circumstances that would defeat the implication of the grant of a right of way. Without the implied term, Borman would not have had access to the property. Therefore, Borman was entitled to use the driveway despite the fact no express provision or granting by the court had been made.
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