Easements – Grant – Claimant timeshare owners applying for declarations of rights to use leisure facilities on defendants’ adjacent land free of charge – Whether asserted rights capable of being easements – Claim allowed
The first claimant company was the freehold proprietor of land in Canterbury on which 26 timeshare units had been built (the timeshare land). The other claimants were the owners of individual timeshare units within that development. Each owner had the exclusive right to occupy a particular unit at specified periods each year, usually one or two weeks, and was obliged to pay charges for the upkeep and maintenance of the timeshare land to an unincorporated association (RVOC) set up to look after and represent the interests of the timeshare owners.
The first defendant was the freehold proprietor of an estate adjacent to the timeshare land. There were sporting and leisure facilities on the estate, including a tennis court, swimming pool, gardens, golf course and squash courts. The second defendant, a related company, was the operator and leasehold proprietor of the golf course.
The claimants asserted that they were entitled to use the sporting and recreational facilities on the estate free of charge, by virtue of a grant contained in a 1981 transfer, by which the then owner of both the estate and the timeshare land had transferred the latter to the first claimant’s predecessor. They brought proceedings, on their own behalf and on behalf of members of the RVOC, seeking a declaration that the rights they claimed were the subject of an easement created by the 1981 transfer in favour of the timeshare units. The principal issue was whether such rights were capable of being the subject matter of an easement.
Held: The claim was allowed.
(1) The four characteristics of an easement were that: (i) there had to be a dominant tenement and a servient tenement; (ii) an easement had to accommodate the dominant tenement; (iii) the dominant and servient owners had to be different persons; and (iv) a right over land could not amount to an easement unless it was capable of being the subject matter of a grant.
The timeshare land was the dominant tenement and the estate was the servient tenement. They had, since the 1981 transfer, been owned by different persons. Moreover, the rights in question accommodated the timeshare land in the sense that the enjoyment of that land, which had been developed into timeshare units for recreational use, was thereby enhanced. The adjacent facilities were connected with and part of the normal enjoyment of the timeshare land and had to be regarded as accommodating that land. Furthermore, the rights were capable of forming the subject matter of a grant. There was nothing vague or excessively wide in the rights, which clearly extended to all recreational and sporting facilities on the estate.
(2) An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure could exist in law. That being so, the use of a pleasure garden took effect as an easement, and it was a relatively small step to extend that to the enjoyment of sporting and other recreational facilities. The objection that a mere right of recreation could not take effect as an easement was therefore apt to mislead, unless the limits of the proposition were understood. The key might lie in the use of the word “mere”, which could connote a right which did not benefit dominant land at all because there was no such land or because the right was wholly extraneous to, and independent of, the use of the dominant land as such. Outside those examples, rights of recreation could take effect as easements, so long as they accommodated dominant land, were not too wide and vague, did not amount to rights of joint occupation and did not deprive the servient owner of proprietorship or legal possession. There was no legal impediment to the grant of an easement to use, for example, a golf course, swimming pool or tennis court, provided the relevant criteria were satisfied. There was no legal impediment to a right of recreation taking effect as an easement, provided that the intention to grant an easement, as opposed to a merely personal right, was evident on the proper construction of the grant, construed in the light of the material surrounding circumstances: Re Ellenborough Park [1956] Ch 131 applied; Duncan v Louch (1845) 6 QB 904 and Mounsey v Ismay (1865) 3 H&C 486 considered.
(3) Accordingly, the claimants had the benefit of an easement conferring the right to use the facilities without payment and were entitled to appropriate declaratory and injunctive relief.
John Randall QC and Marc Brown (instructed by Shakespeare Martineau LLP) appeared for the claimants; Andrew Latimer (instructed by Pannone Corporate LLP) appeared for the defendants.
