Key point
• There is no legal impediment to the grant of easements to use sporting or recreational facilities, if that is what the parties intend
Rights over land that qualify as easements can be enjoyed by future owners of the land that benefit from them and equally can be enforced against future owners of the land burdened by them. They are also hard to lose. So it is important to be able to distinguish between easements and contractual rights, which are usually enforceable only as between the contracting parties, and permissive rights, which can be withdrawn at any time.
Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2015] EWHC 3564 (Ch); [2015] PLSCS 354 takes us back to basics. The case concerned rights included in an intra-group transfer of land made in 1981. The land transferred formed part of a timeshare development. In addition to vehicular and pedestrian rights of way and rights for the passage of services, the transfer included rights, expressed to be for the benefit of the transferee and its successors, to use the swimming pool, golf course, squash and tennis courts, gardens and other sporting or recreational facilities on the retained land.
The transfer did not deal with the cost of maintaining and using the facilities. However, the owners of the timeshare land made voluntary payments for years, before deciding that this was an interference with the rights granted.
The owners of the recreational facilities argued that the rights were personal to the parties to the transfer and had fallen away 24 hours later, when the timeshare land was transferred to a trustee. Consequently, there was no right to use the facilities without paying for them.
Characteristics of an easement
Did the rights take effect as easements? Re Ellenborough Park [1956] Ch 131 confirmed that there are four key elements to an easement. There must be land that benefits and land that is burdened by the rights. Furthermore, both parcels of land must be in different ownership. The court must then consider whether the rights accommodate, or serve, land itself, or are personal to the landowner.
Finally, the court must ask whether the rights are capable of forming the subject matter of a grant. This encapsulates several ideas. Are the rights too wide and vague? Are they inconsistent with ownership or possession of the burdened land? Are they mere rights of recreation, without utility or benefit? If the answer to any of these questions is affirmative, the rights are not easements.
Satisfying the tests
There was no difficulty in satisfying the first two requirements. Furthermore, the judge considered that the rights enhanced the enjoyment of, and must therefore be regarded as accommodating, the timeshare land. The question was: were the rights capable of forming the subject matter of a grant?
The judge held that there was nothing vague or excessive about the rights granted. They did not amount to rights of joint occupation, and did not deprive the owners of the burdened land of proprietorship, possession or control of the facilities, or prevent them from altering or adding to them. In fact, the facilities had been significantly altered and improved and were now open to members of the public with a view to profit.
The rule that rights will not qualify as easements if their existence would require a landowner to carry on a business, or to spend money on them, was not an issue. Although it might not be in their commercial interests to do so, the owners of the facilities were free to neglect them if they chose, or to cease trading altogether. If the rights qualified as an easement, the grantees of the easement would then be entitled to maintain the facilities themselves.
Recreation
There was no English or Scottish authority on the question of whether a landowner can acquire an easement to use a golf course, tennis court or swimming pool. However, there was a school of thought that such rights would not qualify as easements because, to quote Theobold’s Law of the Land (1929), an easement “must be a right of utility and benefit and not one of mere recreation and amusement”.
More recently, in Moncrieff v Jamieson [2007] UKHL 42; [2007] PLSCS 201, Lord Scott suggested that a right to use a swimming pool would constitute a personal contractual right, at best. Nonetheless, Judge Purle QC decided that the owners of the timeshare land had the benefit of an easement (which extended to facilities that were not present or planned in 1981, or that had been improved since then).
Ellenborough Park dealt with the use of a pleasure garden, which took effect as an easement, and it was a relatively small step from that to the enjoyment of sporting and other recreational facilities. It might be correct to construe rights to recreation as personal in a purely domestic context. However, there was no compelling reason to reach such a conclusion here.
Parties’ intentions
The previous contributions made by the owners of the timeshare land helped to ensure that the facilities were properly maintained. They were not an admission that use of the facilities was chargeable, and did not abrogate the easement granted.
The parties to the 1981 transfer had intended to create rights that would survive the creation of a trust immediately afterwards. The rights were expressed to be for the benefit of successors in title and the occupiers from time to time of the timeshare land, and formed part of a group of rights that were clearly easements.
Therefore, the owners of the timeshare land were entitled to declaratory and injunctive relief to reflect and protect their right to use the recreational and sporting facilities without paying for them.
Allyson Colby is a property law consultant
