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Published: Fri, 12 Oct 2018
Adealon International Corporation Pty Ltd v Merton LBC  EWCA Civ 362
Property Law – Easement – Right of Way – Way of Necessity
Adealon’s predecessor in title B Ltd, owned land by a highway, but there was no access to this road from B Ltd’s property. A large amount of B Ltd’s land was purchased by the previous owners of Merton Council’s land, K Ltd. K Ltd’s land was then sold to Merton Council. Merton Council took possession of the whole site without realising part of it was still owned by B Ltd. They built a day care on the land and used part of B Ltd’s land as the garden and car park. B Ltd sold the rest of their land to Adealon. Adealon claimed it was entitled to an easement of necessity for pedestrian and vehicle traffic to the highway over the Council’s land.
Whether there was a way of necessity over the council’s land that could be implied.
The appeal was dismissed. In considering whether there is an implied easement of necessity, the presumption must be that any rights the grantor required over the land when it was transferred would have to be included in the conveyance and consequently, expressly reserved in the grant. The burden was held to lay with the grantor to establish an exception to this rule. If there was no normal expectation for access, any easement would be on the basis of an implied reservation and not an implied grant. There had been no reservation for a specific right of access to the highway when B Ltd transferred the land to K Ltd. Thus, there was no basis for an implied right and no evidence to overcome the ordinary presumption of rights being expressly stated in the grant.
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