Easements of necessity are based on intention and not public policy

The implication of an easement of necessity is based on what the parties must have intended  given the fact that land conveyed is land-locked and they are unlikely to have intended this.

Nickerson v Barraclough ([1981] Ch 426, CA (Eng)) concerned a plot of land that had formed part of a larger estate. The estate had been divided into a number of plots (including that owned by the plaintiff). It was contemplated that the plots would be used for building purposes. The plans prepared at the time of the sale in 1906 had shown the intended line of the roads to be built to serve the development. The conveyance had, however, expressly stated that the line of the roads might be changed and that no easements were granted over any part of the seller’s land until the roads had been completed. The question was whether, despite this, there could be an easement of necessity. Does a finding that there is no intention to create an easement (here based on the express intention not to create an easement) prevent a successful claim to an easement of necessity? Or are easements of necessity based on public policy (or is public policy an aid to construction so as to make it easier to find that there is an easement of necessity)?

The English  Court of Appeal held that easements of necessity are based on intention. A clearly expressed intention not to grant an easement prevents an easement of necessity from arising.

2 Responses to “Easements of necessity are based on intention and not public policy”

  1. gogoy123 Says:

    I have a question on the definition of landlocked : is a parcel of land which is bordered on 3 directions by land and one direction by water landlocked (ie it can only be reached by water without crossing other’s land) ?

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