Madeline Baker
Posted on 19 Feb 2019

Easements: New recreational and sporting rights established

Easements, such rights of way, are more often than not of critical importance to the use and enjoyment of a property. Rights such as rights of access, rights to lay and use service media and rights to light are well established, but in the recent case of Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] the Supreme Court took the opportunity to establish new rights to use recreational and sporting facilities, which will benefit both current and future owners of the relevant land forever.

The Case

The case concerned two neighbouring properties, one of which (Broome Park) comprised timeshare apartments with extensive leisure facilities, including a tennis court, swimming pool, squash courts and a golf course. The two properties were in common ownership in the early 1980s and in 1981 the second property (Elham House) was converted into timeshare apartments and 24 new apartments were built.

The transfer of Elham House included a right for the new owner and successors to enter and use the leisure facilities at Broome Park. There was no mention of payment for that use. When the facilities fell into disrepair the owner of Broome Park demanded contributions towards their upkeep. A number of voluntary payments were made up until 2011 and thereafter Elham House timeshare owners were charged for use of the facilities. In 2012 those owners started proceedings claiming a declaration that they were entitled, by way of easement, to free use of the facilities and repayment of the sums and fees they had paid.  

The 4 characteristics of an easement

The claimants succeeded on the main easement issue in both the High Court and the Court of Appeal. In the Supreme Court Lord Justice Briggs summarised the four characteristics of an easement as described in the case of Re Ellenborough Park [1956] as follows:

(1) There must be dominant land (which enjoys the benefit of the easement) and servient land (over which the easement is exercised).

(2) The right must accommodate (i.e. advantage) the dominant land.

(3) The dominant and servient land must be owned by different people.

(4) The right must be capable of forming the subject matter of an easement.

The Ellenborough Park case concerned the grant of a right to use a communal garden in the centre of a residential square of townhouses.

Applying these conditions to the leisure facilities, the first and third criteria caused no difficulty, however the second and fourth were more complex.

Accommodating the property

On the second issue Lord Briggs noted that traditionally the phrase "accommodate the dominant tenement" has been understood to mean that the easement must benefit the dominant tenement as land. However, he found that "save only for easements of support.... easements generally serve or accommodate the use and enjoyment of the dominant tenement by human beings" thus the use of leisure facilities in this case accommodated the Elham House apartments and therefore satisfied this condition.

New facilities

Lord Briggs considered the question of whether the facilities included just those constructed in 1981 or all facilities built after this time. He concluded that the grant comprised "the right to use such recreational and sporting facilities as exist within the leisure complex in the Park from time to time".

Maintenance of facilities

On the fourth issue Lord Carnwith disagreed with the majority view. He concluded that apart from fencing easements, easements cannot require anything more than acquiescence from the servient owner; The nature of the rights apparently granted would be meaningless without maintenance by the owners of Broome Park, and the maintenance was therefore an intrinsic part of the right claimed.

The majority agreed that nothing more than acquiescence could be required, but determined that the facilities could still be enjoyed by the dominant owners, even if maintenance stopped; they could "step onto" the neighbouring land and mow the fairways, fill the pool and provide their own tennis nets themselves. Lord Briggs distinguished other facilities which would not constitute easements as follows:

"Free rides on a miniature steam railway, a covered ski slope with artificial snow, or adventure rides in a theme park are examples which would probably lie on the wrong side of the line, so as to be incapable of forming the subject matter of an easement."

Extension of the law

Lord Briggs was clear that this case was extending the law to recognise a new type of easement and justified this as follows:

"Whatever may have been the attitude in the past to “mere recreation or amusement”, recreational and sporting activity of the type exemplified by the facilities at Broome Park is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit."

He acknowledged that the use of easements (granted for an indeterminate period) for conferring recreational rights for timeshares (often set up for a limited number of years) was not ideal. He contrasted this with the far better use of a leasehold structure for Broome Park. He did not however consider that this should prevent these rights from constituting easements, saying as follows:

"..... the common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land. The timeshare development, which is quintessentially for holiday and recreational use, is just such a new type, and the common law should accommodate it as far as it can."

Conclusion

The decision in this case remedied some poor conveyancing, however, as Lord Briggs acknowledged, there are other difficulties in accepting easements of this nature. Although this case has changed the law and so for the time being recreational facilities can constitute easements, in light of the matters highlighted by Lord Carnwith in his dissenting judgement, it remains to be seen whether this extension of the law is upheld in future cases.