A whole new species of easement is born
Every land law student is taught that a right to use communal gardens qualifies as an easement, thanks to Re Ellenborough Park [1956] Ch 131. Do wider recreational rights also qualify? It was always thought that they did not. But the Supreme Court decision in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 endorses the right to use a range of sporting and recreational facilities in a leisure complex.
The case breaks new ground – far beyond that established in Re Ellenborough Park. The nature of the recreational and sporting facilities in question was much greater, their extent was wider, and the facilities needed intensive management. But recreational rights are recognised as easements in other parts of the world and the Supreme Court decided, by a majority, that whatever the attitude in the past, recreational and sporting activity is so clearly a beneficial part of modern life that the law should support structures that promote it, rather than treating them as devoid of practical utility or benefit. Furthermore, easements can be exercised over chattels or fixtures, as well as over land itself.
Two of the four essential requirements of an easement were met. There was land that benefited from, and land burdened by, the rights. And both parcels were in different ownership. But did the rights granted to the owners of the benefited land accommodate their land? Lord Briggs, who spoke for the majority, had no doubt that the rights benefited the land itself, as well as benefiting the right-holders as individuals. Furthermore, where the actual or intended use of the land that benefits is itself recreational, as will generally be the case for holiday timeshare developments like this one, the accommodation condition will generally be satisfied.
Every land law student is taught that a right to use communal gardens qualifies as an easement, thanks to Re Ellenborough Park [1956] Ch 131. Do wider recreational rights also qualify? It was always thought that they did not. But the Supreme Court decision in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 endorses the right to use a range of sporting and recreational facilities in a leisure complex.
The case breaks new ground – far beyond that established in Re Ellenborough Park. The nature of the recreational and sporting facilities in question was much greater, their extent was wider, and the facilities needed intensive management. But recreational rights are recognised as easements in other parts of the world and the Supreme Court decided, by a majority, that whatever the attitude in the past, recreational and sporting activity is so clearly a beneficial part of modern life that the law should support structures that promote it, rather than treating them as devoid of practical utility or benefit. Furthermore, easements can be exercised over chattels or fixtures, as well as over land itself.
Two of the four essential requirements of an easement were met. There was land that benefited from, and land burdened by, the rights. And both parcels were in different ownership. But did the rights granted to the owners of the benefited land accommodate their land? Lord Briggs, who spoke for the majority, had no doubt that the rights benefited the land itself, as well as benefiting the right-holders as individuals. Furthermore, where the actual or intended use of the land that benefits is itself recreational, as will generally be the case for holiday timeshare developments like this one, the accommodation condition will generally be satisfied.
Were the rights capable of constituting an easement? Lord Briggs explained that this encapsulates several requirements. The right must be defined in sufficiently clear terms, and must not be susceptible to removal at whim. Both these requirements were met. In addition, the right must not be so extensive or invasive that it excludes the burdened landowner or prevents him from possessing or controlling his land. Furthermore, the owner of the burdened land should not have to spend money or take any positive action to enable the rights to be exercised.
Did the rights granted deprive the burdened landowner of possession and control of its land because the owners of the timeshare units would be entitled to step in if the owner of the facilities were to stop managing and maintaining them? Lord Briggs explained that this was the wrong test. The test should be applied at the time of the grant (and not to step-in rights that might arise subsequently). Nothing in the grant detracted from the burdened landowner’s rights to manage and control its land – and it did not need to manage and maintain the facilities for the owners of the timeshare units to make use of them. Some facilities might not be useable indefinitely, if the timeshare owners were to have to step in, but that did not prevent the rights from qualifying as an easement.
The Court of Appeal had distinguished between the rights granted over the external and internal facilities. But the Supreme Court disagreed. The timeshare owners were plainly granted rights to use all the facilities, including the new indoor swimming pool and other facilities (including a gym, sauna, billiard room, TV room, lavatories and a restaurant) in the ground floor and basement of the leisure complex.
Allyson Colby, property law consultant
