Borman v Griffith [1930] 1 Ch 493
Explore the landmark case of Borman v. Griffith (1930), crucial for law students examining the role of consent and knowledge in contractual agreements, particularly within the context of misrepresentation and mistake.
Facts
Land within a larger estate was let for use as a garden. A visible route across the surrounding land provided access to the demised premises, but the lease did not expressly grant a right of way. A dispute arose when use of that route was challenged. The claimant relied on the circumstances of the letting and the route’s connection with enjoyment of the garden. The case concerned whether a right passed by implication with the grant, rather than whether the parties had entered the lease under a contractual mistake.
Legal Issue
Did the letting imply a right over the visible driveway under Wheeldon v Burrows because it served the reasonable enjoyment of the granted premises?
Held
Maugham J recognised an implied right of way. The visible road served the property granted and was necessary for its reasonable enjoyment in the relevant circumstances. Applying the principle associated with Wheeldon v Burrows, the court treated the access as passing with the grant unless the agreement excluded it. This was an enquiry into the circumstances of the disposition and the use of the properties, not a general entitlement to whichever route the occupier found most convenient. The necessary degree of enjoyment under that implication principle should also be distinguished from the stricter enquiry involved in an easement of necessity.
⭐ Legal Principle
A visible access route serving land granted out of common ownership may pass as an implied easement where the applicable conditions are satisfied and the grant does not exclude it. Reasonable enjoyment under Wheeldon v Burrows must be distinguished from strict necessity.
Significance
Borman illustrates implied grant on the division or letting of land. It is useful where a conveyance omits an express access provision but the physical arrangement makes the route apparent. The original significance discussion about mistake and misrepresentation was unrelated and has been removed. Modern analysis should identify the precise implication route, including any reliance on section 62, rather than assuming all implied easements have the same requirements.
Common exam questions about this case
Why did the absence of an express right not end the claim?
Rights may pass by implication when land is granted, provided the relevant conditions are established. The visible route and its relationship to reasonable enjoyment of the granted premises supported that conclusion. Silence in a lease is therefore different from an effective express exclusion of the right.
Is reasonable enjoyment the same as strict necessity?
No. Different implication doctrines use different tests. Borman concerned the principle associated with Wheeldon v Burrows and reasonable enjoyment of the grant. It should not be cited as though any useful access automatically satisfies the stricter test for an easement of necessity.
What facts should an examiner expect a student to identify?
Identify the ownership and disposition of the two areas, the visible access arrangement, its use and importance to the property granted, and any exclusion in the instrument. Those facts connect the claimed right to the grant and prevent the argument becoming a general demand for convenient access.