Barrister and Solicitor
Legal Writing and Research
Real Property - Easements - Easement of Necessity
Toronto-Dominion Bank v. Wise (Ont Ca, 2016)
Here the court canvasses the basic principles behind a finding of 'easement of necessity':
The principles governing easements of necessity
 The basic requirements of an easement of necessity were described by this court in McClatchie v. Rideau Lake (Township), 2015 ONCA 233 (CanLII),  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).
 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).
 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.
 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.
 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.
 This court’s decision in Barbour v. Bailey, 2016 ONCA 98,  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.
 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.