Ontario Court of Appeal confirms test for grantor's easement of necessity remains "strict necessity", not "practical necessity"

In Ontario, an easement of necessity may arise where land that is sold is inaccessible except by passing over adjoining land retained by the seller (i.e. an implied grant by the seller of an easement that allows the purchaser to access the purchased lot).  The easement must "be necessary to use or access the property", and necessity is determined at the time of the grant (the situation at the time the property was sold).

It is also possible for the easement to arise in the opposite direction, where the grantor (the party selling the land) requires an access easement across the land being sold or transferred.  That was the situation reviewed recently by the Ontario Court of Appeal in Toronto-Dominion Bank v. Wise.  In a case where the grantor or seller seeks an easement over the land that he or she transferred, the test is one of "strict necessity".  The test to be met by a grantor seeking an easement is supposed to be more difficult than where a grantee seeks an easement because "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."

In the Toronto-Dominion Bank v. Wise case, the application judge in the Superior Court had found that a landlocked waterfront property had an easement of necessity over a neighbouring property in spite of the availability of water access.  The judge found that the water access was "impractical".  On appeal, the Court of Appeal reversed the decision on the basis that the water access, whether inconvenient or impractical, was available, and that the property in question was not rendered unusable.  The test to be applied was not "practical necessity" (as the judge at first instance had proposed), but remained one of "strict necessity".

Read the decision at: Toronto-Dominion Bank v. Wise.