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Easements - Of Necessity

. Primont (Castelmont) Inc. v. Friuli Benevolent Corporation

In Primont (Castelmont) Inc. v. Friuli Benevolent Corporation (Ont CA, 2023) the Court of Appeal considered, but dismissed, an argument of 'easement of necessity':
The easement of necessity issue

[61] LTC submits that, generally, an easement of necessity will be found where land is severed and an easement or quasi easement that is necessary to the reasonable enjoyment of the land severed was used by the original owner up to the time of the severance, and was apparent at the time the severance occurred: Deforest Bros. v. Tuck, 2020 ONSC 6439, at para. 38.

[62] LTC claims that here, parking is necessary to the reasonable enjoyment of its lands, that the parking spaces at issue have only ever been used as shared parking for Famee and LTC, and that the shared parking spaces have been apparent through painted lines and use, including parking spaces partially on both the LTC lands and the Property. Accordingly, the application judge erred in failing to find an easement of necessity for parking.

[63] I would not give effect to LTC’s argument. Like the application judge, I see no basis for applying the doctrine of an easement of necessity in this case. As the application judge held, “[a]ccess and egress to the newly created lot was necessary and was dealt with expressly by easements.” Parking was the subject of the Agreements among the landowners and the City. The doctrine simply does not apply. The Easement resolved the problem of the LTC land being landlocked. Parking was dealt with through the Agreements.
. Toronto-Dominion Bank v. Wise

In Toronto-Dominion Bank v. Wise (Ont Ca, 2016) the court canvasses the basic principles behind a finding of 'easement of necessity':
The principles governing easements of necessity

[20] The basic requirements of an easement of necessity were described by this court in McClatchie v. Rideau Lake (Township), 2015 ONCA 233 (CanLII), [2015] O.J. No. 1737. As Rouleau J.A. explained, easements of necessity are “presumed to have been granted when the land that is sold is inaccessible except by passing over adjoining land retained by the grantor. The concept arises from the premise that the easement is an implied grant allowing the purchaser to access the purchased lot” (para. 48).

[21] It is well established that the necessity of an easement of necessity is determined at the time of the grant (para. 49). Moreover, an easement of necessity “must be necessary to use or access the property; if access without it is merely inconvenient, the easement will not be implied” (para. 53).

[22] As the application judge noted, McClatchie addresses the implication of easements of necessity only from the perspective of a grantee of land – the person who obtains the land in favour of which an easement is required. It is well established, however, that an easement of necessity is also available to a grantor of land – the original owner who retains part of the land: see Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), at p. 178; Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499 (C.A.), at para. 21.

[23] Although English authority holds that the test for an easement of necessity is more difficult to meet when the easement is sought by the grantor rather than the grantee (see Gale on Easements, p. 179), it is not necessary to consider the matter for the purposes of this case. This case involves a grantor and there is no doubt that the test involving grantors is strict necessity.

[24] The strong test of strict necessity ensures that grantors are not permitted to derogate from the terms of their grant of land. If they want to reserve an easement, they should do so explicitly at the time they make the grant. An easement of necessity will be found only if it was necessary in order for the grantor to be able to use his or her property at the time of the grant. Water access to property defeats a claim of necessity, regardless of convenience.

[25] This court’s decision in Barbour v. Bailey, 2016 ONCA 98, [2016] O.J. No. 3261, illustrates these points, albeit in the context of a claim by a grantee rather than a grantor. The court held that an easement of necessity was not available because the property for which the easement was sought – an island sometimes joined to the beach isthmus during periods of low water levels – was not inaccessible and hence unusable. Access to the island was certainly not convenient: previous owners of the island had used a rowboat, either by rowing it to the island or pulling as they waded across the water, or they had walked along the shoreline. Nevertheless, water access was possible, and that was enough to defeat an easement of necessity. The applicant’s preference for a quicker and more convenient means of access by way of an easement was irrelevant.

[26] See also Fitchett v. Mellow, (1897) 29 O.R. 6; Hardy v. Herr (1965), 1964 CanLII 157 (ON SC), 1 O.R. 102 (H.C.), aff’d (1965), 1965 CanLII 225 (ON CA), 2 O.R. 801 (C.A.); and Manjang v. Drammeh (1990), 61 P. & C.R. 194, (P.C.), at p. 4. Although the trial judge in Dobson considered that water access could defeat an easement of necessity, the case was decided on its own facts – in particular, a finding that the river in question was not navigable at the time of the grant.



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Last modified: 10-07-23
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