Supreme Court gives landmark ruling on recreational rights

The Supreme Court has found that rights to use sporting and recreational facilities can constitute easements – transferable property rights – finally resolving a controversial issue said to go back to Roman times. Lord Briggs said it was time for the highest court to recognise that, whatever may have been the attitude in the past to “mere recreation or amusement”, recreational and sporting activity is “so clearly a beneficial part of modern life” that the law should help “promote and encourage it, rather than treat it as devoid of practical utility or benefit”. Martin Edwards, head of property disputes at Shakespeare Martineau, who acted for the successful party in the case, Regency Villas, said that the decision will “almost certainly send shock waves across the global property sector”. He said: “In deciding the residents at Regency Villas had the right to continue using neighbouring sporting and leisure facilities free of charge, the Supreme Court has set a very clear precedent and resolved a controversy which goes as far back as Roman law regarding the circumstances in which such pure recreational rights may qualify as being easements. “A key feature of this case is that the grant of these recreational rights – which were enjoyed in a self-contained way on Broome Park Estate – was of service, utility and benefit to the timeshare apartments. “Shared facilities between properties is not a new concept and is in place on many golf resorts, health clubs and apartment complexes. Now that we have a clear legal definition as to which recreational rights should count as easements, it’s likely that timeshare and property owners across the world will be sitting up and questioning whether they can enforce rights over use of other facilities, potentially leading to more claims. This could include the use of golf courses, tennis courts, gyms, swimming pools and restaurants and go beyond the more conventional facilities such gardens and parking spaces.” Tim Reid, senior associate at Hogan Lovells International, said that the decision provided welcome clarification for the property industry, but cautioned that it was important to emphasise that “while the Supreme Court has confirmed that an easement for sports and recreation is capable of being granted, it will often be difficult to prove that the right in question meets all the criteria for creating a binding easement”. He said: “The judgment made it clear that the factual circumstances are as important to the decision as the underlying legal principles. The rights claimed must have all the requisite characteristics of an easement, and that can be quite difficult to prove when it comes to enjoying rights of sport or recreation. “It’s also important to stress that on the facts of this case the express right to use the sports facilities in and around the Mansion House at Broome Park had been a major selling point when the timeshare apartments were being marketed in the early 1980s, and the extent of the rights (that is, use of all of the sporting and recreational facilities on the neighbouring land) was clear from the outset, even if it included the right to use facilities that had not yet been built. Again, this will not always be the case when looking at rights.” The case raised the question whether rights to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities were easements, exercisable for free by nearby timeshare occupants. The rights were included in a 1981 transfer of Elham House, which lies in the middle of the Broome Park Estate, near Canterbury, and is used as timeshare accommodation known as Regency Villas. However, a dispute arose over whether the occupiers of Regency Villas could be charged in order to continue using the mansion house facilities. If those rights were not valid easements, they took effect as personal rights only – but, as personal rights do not run with land, and, because the house and gardens had subsequently changed hands, any rights that did not qualify as easements had been lost. In April 2017, the Court of Appeal decided that the rights to use the gardens, tennis courts, squash courts, putting green, croquet lawn and 18-hole golf course were all valid easements. As a result, the timeshare owners would not be liable to pay for the upkeep or use of those facilities. It found that the right to use the original outdoor swimming pool would also have qualified. However, because that pool was closed in 2000, it ruled that the timeshare occupiers do not have an easement to use the replacement indoor swimming pool built in a different location in 2005. Appeal dismissed Today, by a four-to-one majority, the Supreme Court dismissed an appeal by the owner of the mansion house, Diamond Resorts (Europe), against that ruling – and allowed a cross-appeal by the timeshare occupiers in respect of the swimming pool. Giving the lead judgment, Lord Briggs said: “This appeal offers an opportunity for this court to consider, for the first time, the extent to which the right to the free use of sporting and recreational facilities provided in a country club environment may be conferred upon the owners and occupiers of an adjacent timeshare complex by the use of freehold easements.” He explained that the essence of an easement is that it is a species of property right which confers rights over neighbouring land, adding: “The two parcels of land are traditionally, and helpfully, called the dominant tenement and the servient tenement. The effect of the rights being proprietary in nature is that they ‘run with the land’ both for the benefit of the successive owners of the dominant tenement, and by way of burden upon the successive owners of the servient tenement. By contrast, merely personal rights do not generally have those characteristics.” While recognising that holding that the rights claimed in this case were easements might be seen as “breaking new ground”, he said that the court should make “a clear statement that the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement”, provided that they satisfy the four well-settled conditions for easements. Those are: i) There must be a dominant and a servient tenement; ii) The easement must accommodate the dominant tenement; iii) The dominant and servient owners must be different persons; iv) A right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant. Lord Briggs said: “Where the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied. Whether the other conditions, and in particular the components of the fourth condition, will be satisfied will be a question of fact in each case. “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.” Ruling that the easements extend to use of the new indoor swimming pool, the majority of the court held that the Court of Appeal had been wrong to limit the grant of rights to the facilities in existence at the time of the grant in 1981. It said that the sporting and recreational facilities referred to in the Facilities Grant were bound to change significantly over time and the new indoor swimming pool was, once complete, a facility made within the complex. Lord Carnwath gave a dissenting judgment in which he said that the intended enjoyment of the rights granted in this case, particularly as to the golf course and swimming pool, cannot be achieved without the active participation of the owner of those facilities, therefore such an extension of the law on easements would be wrong in principle. To send feedback, e-mail jess.harrold@egi.co.uk or tweet @estatesgazette