Easements: What does “necessary” mean?Print publication
The recent case of Shaw v Grousby  is a useful reminder of the importance of careful consideration when drafting easements, particularly when rights are granted within the context of a property transfer or lease, where the terminology of the easement may not be the main focus of the parties’ attention.
What is “necessary” access to property?
Shaw v Grousby concerned the extent to which an easement may be limited by being granted so far as “necessary” – in this case in the context of a right of way over a shared driveway. In reaching its decision, the Court of Appeal acknowledged that a property’s needs can evolve over time, which can alter what would therefore be deemed to be necessary at any given point.
What are the parameters of an easement?
The make-up of an easement can generally be categorised by the following:
- physical extent (such as the width of a right of way)
- purpose and manner of use (for example a right of way to gain access to a single property) and
- any limitations on use (for example with or without vehicles, or specified permitted hours of use).
Each of these elements should be considered when granting or reserving rights over land to ensure that the easement is capable of being fully enjoyed by the benefitting land, whilst being duly limited so as not to interfere with the use of the burdened land. Being as comprehensive and as clear as possible in the express written grant itself leaves the right much less vulnerable to any future disagreement and dispute.
Three properties had been built in the grounds of a manor house, one of which was the subject property in this case (Property A). The transfer of Property A included a right of way over a driveway from the public highway to the manor house, which remained part of the manor house title. The right of way was granted over “so much of the driveway… as is necessary to obtain access… subject to the proviso that the Buyers shall contribute a fair and reasonable proportion of the cost of maintaining the same… to the extent of the user of the driveway by the Buyers.”
Part of the boundary of Property A abutted the driveway. At the time of grant, a wooden fence was erected along the boundary between Property A and the driveway, with a gap in the fence providing access to Property A. Subsequently, the owners of Property A removed the fence and built a wall in its place, but in doing so they sealed up the gap constituting the access. Instead, they installed gates in a location some way further up the driveway.
The manor house owners claimed that the right of way limited access to the point which had existed at the time of grant of the right – namely, the point where the gap in the fence had been; however the now-owners of Property A argued that the right of way permitted access at each and every point at which Property A abutted the driveway, therefore allowing the use of the new gated access.
The Court of Appeal found for the now-owners of Property A and confirmed:
- The extent of a right of way is a matter of construction of the relevant deed.
- The plan annexed to the transfer of Property A included the entire driveway (from the highway to the manor house), indicating the maximum extent over which the right of way could be exercised.
- “Necessary” should not be construed by reference to a fixed point in time – the way properties are used can evolve over time and what is necessary can therefore change as such usage is varied.
- The court considered the argument made by the manor house owners that “necessary to obtain access” inferred the point of access that is shortest from the public highway, but disagreed, noting that the grantor was protected by the right being subject to payment towards maintenance costs according to user. Changing the access point (and thereby using more of the driveway) would be reflected in that subjection.
- If the intention had been to impose limitations (such as to fix the access point), then the transfer should have expressly said so.
This case is a reminder of the importance of fully considering the parameters of any rights that are being proposed and ensuring that any required limitations or allowances are expressly drafted in the easement itself.
The Walker Morris transactional Real Estate Department has a broad spread of experience in drafting and negotiating easements for a wide range of projects and can advise on the proper and appropriate scope of rights being granted or reserved.
  EWCA Civ 233