Easement of necessity where otherwise the envisaged use would be illegal

Where a lease is granted that envisages a particular use, an easement of necessity will be implied where, otherwise, that use would be illegal.

In Wong v Beaumont Property Trust ([1965] 1 QB 173, CA (Eng)) L granted T a lease of cellars for twenty one years. The lease required the property to be used as a restaurant. T covenanted to control and eliminate all smells and odours and to comply with health regulations. The regulations in question required the provision of suitable and sufficient ventilation. T also covenanted not to cause a nuisance or annoyance to L or other tenants or occupiers. Compliance with the regulations and covenants required the installation of a ventilation system with a duct fixed to the outside wall of the back of the building. This fact was not appreciated by the parties when the lease was granted. L refused T permission to fix the duct to the back of L’s property above the restaurant. T sought a declaration that he was entitled to an easement that allowed him to fix the duct to the back of L’s property.

T succeeded. The English Court of Appeal held that T was entitled to an easement of necessity since it was objectively necessary at the time the lease was granted. Salmon LJ explained:

‘[I]f a lease is granted which imposes a particular use on the tenant and it is impossible to use these premises legally unless an easement is granted, the law does imply such an easement as of necessity.’ (at 184)

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