Facts
- Mr. Borman leased a gas station and adjacent land from Mr. Griffith.
- The written lease did not include a provision for use of a driveway connecting the property to the main road.
- The driveway was the only practical means for vehicles to access the gas station.
- Mr. Griffith sought to prevent Mr. Borman from using the driveway, leading to the legal dispute.
Issues
- Whether an implied right of way could be recognized for Mr. Borman to use the driveway, even though it was not expressly set out in the lease.
- Whether such an implied right depends on the necessity for the property's intended commercial use.
Decision
- The Court of Appeal held that Mr. Borman had an implied right to use the driveway.
- The court determined that access was necessary for operation of the gas station for its intended commercial purpose.
- The presence of an implied right of way depends on what is reasonably required for the specific use anticipated at the commencement of the lease, not on absolute necessity.
- The judgment distinguished between implied rights in leases and those arising under Wheeldon v Burrows, focusing here on the intended function rather than prior quasi-easement use.
Legal Principles
- An implied right of way may arise in a lease where such access is necessary for the reasonable enjoyment of the demised premises, given the property’s intended use.
- Recognition of implied easements in leases stems from the parties’ probable intentions and the requirement of access to fulfill the property’s agreed function.
- The test is necessity for the planned use, not simply absolute necessity.
- The approach in Borman v Griffith is distinct from Wheeldon v Burrows, where prior quasi-easements are central.
Conclusion
Borman v Griffith established that courts may imply a right of way into a lease where access is necessary for the property’s intended function, reflecting the reasonable expectations and intentions of the parties at the outset of the lease.