Recreational easements: a new species

Following a recent Supreme Court decision, easements perhaps go further than we thought towards protecting a right to use neighbouring land. Last month, the Supreme Court recognised the existence of a novel type of easement – recreational easements – in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57; [2018] PLSCS 198. Although recreational easements have already been widely recognised in common law jurisdictions, the leading English authority on easements of recreational and sporting rights (the much-quoted In re Ellenborough Park [1956] Ch 131) is more than 60 years old and reached the end of the road in the Court of Appeal ([2017] EWCA Civ 238; [2017] EGLR 24). Taking the opportunity presented by the Regency Villas appeal, the Supreme Court revisited the law on easements and reiterated the principles that had been articulated in Ellenborough Park. Regency Villas was a timeshare complex which benefited from free use of the swimming pool, golf course and other sporting and recreational activities on the adjoining estate, known as Broome Park, near Canterbury, Kent. An express right to use the sports facilities at Broome Park had been a major selling point when the Regency Villas timeshare apartments were being marketed. The extent of the rights appeared clear from the outset, even including the right to use facilities that had not yet been built. In the case that came before the Supreme Court, the owners of Broome Park challenged the rights of the current Regency Villas owners to use the facilities without fees or having to make a contribution to the maintenance costs, arguing that the rights originally granted could not take effect as easements. The value of an easement An easement is a type of property right which allows the owner of one piece of land (the “dominant tenement”) to make use of neighbouring “servient” land. One important feature of an easement, which makes them more valuable than a mere personal or contractual right, is that – when the land changes hands – easements run with the land for the benefit of successive owners of the dominant land and by way of burden on the servient land. Having the benefit of an easement over neighbouring land can be an attractive – and often vital – part of buying land. Conversely, the burden of an easement can limit the owner’s scope for redeveloping the subject land, because they can be very difficult to extinguish. Easements can be created by express grant or by implication. An easement might be implied as a matter of necessity (typically, where part of land has been sold and there is no way to enjoy use of, or access to, the sold land other than by the implied easement) or because of the original common intention of the parties. The law relating to how an easement can arise by implication is worthy of a lengthy article in its own right. There are four conditions which must be satisfied for a right to take effect as an easement, and a lawful easement must have all of the requisite characteristics (see below). That can be rather difficult to prove, especially when it comes to enjoying rights of sport or recreation. In Regency Villas, the High Court and the Court of Appeal had both concluded that the right to use the leisure facilities existed as an easement. However, the issues were sufficiently important to warrant the appeal being escalated to the Supreme Court. The four requirements of an easement Ellenborough Park established the conditions for a right to constitute an easement: There must be dominant and servient land. The right must accommodate the dominant land. The dominant and servient owners must be different persons. The right must be capable of forming the subject matter of a grant. A right must satisfy all four elements to exist as an easement. Regency Villas illustrates well enough how the first and third conditions operate. There was dominant land (Regency Villas), which had the benefit of rights granted to use facilities on the servient land (Broome Park). The dominant and servient owners were different people, so that satisfied the third condition. As in Ellenborough Park, the contentious issues in Regency Villas centred on whether the second and fourth requirements had been met. ‘Accommodating’ the dominant land The Law Commission’s 2011 report Making land work: easements, covenants and profits à prendre stated that – to be an easement – a right should be of some practical importance to the benefited land, rather than just to the right-holder as an individual (such as a personal right granted between friends for one neighbour to use the other’s swimming pool from time to time). The right must be reasonably necessary for the better enjoyment of that land for its normal use. More typical examples include easements of rights of way, which improve accessibility for the dominant land, and rights to lay service media on land, which allow the dominant owner to receive utilities. In Ellenborough Park, the Court of Appeal had determined that a right granted for recreational or sporting use is capable of being an easement. A classic example of a recreational use which is exercised for the better enjoyment of the dominant land would be the use of a communal garden which is connected with and enhances the normal enjoyment of the surrounding homes. Ellenborough Park itself was held by the judges in that case to have been a communal garden for the benefit and enjoyment of adjoining houses. In such cases, the right of the owners of the neighbouring “dominant” land to use the garden can constitute an easement. It is relatively easy to recognise that certain easements, such as rights of way and rights to lay service media across a neighbour’s land, provide utility and benefit to the dominant land. In comparison, it will not always be the case that a right granted for the use of neighbouring land for sport will amount to an easement (and therefore be enforceable by successors in title), so the questions of utility and benefit have to be looked at closely in every case. It is primarily a question of fact as to whether a particular recreational right accommodates the dominant land. In Regency Villas, the dominant land was used for timeshare units. These would typically be used by holidaymakers who would benefit from having free use of the nearby leisure complex at Broome Park. The timeshare owners’ rights to use the leisure facilities were for the benefit, service and utility of the Regency Villas apartments, and were found to be a major selling point to buyers of the timeshares. The subject matter of a grant The requirement that an easement must be capable of forming the subject matter of a grant is rather vague. Even the judges in Ellenborough Park said that its significance is “not entirely clear”. However, it seems to encompass a miscellany of requirements, which must be met in order for the right in question to constitute an easement. In Regency Villas, the Supreme Court noted that a right: must be defined in sufficiently clear terms; cannot be “purely precarious”, so that it can be denied at the servient owner’s whim; must not oust the servient owner from enjoyment or control of their own land; and should not impose any obligations on the servient owner to expend money or do anything beyond “mere passivity”. The Supreme Court provided some helpful commentary on the third of those requirements – the doctrine of “ouster” – which is a rather controversial issue. The Law Commission said in 2011 that the requirement regarding ouster should be abolished owing to its uncertainty and consequent propensity to create litigation. In Regency Villas, the owner of the servient tenement at Broome Park was expected to maintain the facilities, but the Regency Villas owners were assumed to have “step-in” rights to carry out maintenance on the facilities if the Broome Park owner failed to do so. It is important to look at the parties’ ordinary expectations, at the date of the grant, as to who was expected to maintain the facilities. The Regency Villas owners’ step-in rights would arise only if the Broome Park owners failed to carry out their maintenance obligations. Nothing in the terms of the grant therefore encroached on the control wielded by the owners of Broome Park. The requirement regarding “mere passivity” is, in comparison, relatively well settled. The court in Moncrieff v Jamieson [2007] 1 WLR 2620 said that a right that “required some positive action to be undertaken by the owner of the servient land in order to enable the right to be enjoyed by the grantee” could not be an easement (such as an informal arrangement for one person to use a neighbour’s swimming pool with their permission and with access being provided by the owner from time to time). The majority of the Supreme Court concurred that the grant of an easement should not impose an obligation on the owner of the servient land, for the benefit of the owner of the dominant land, to carry out maintenance on the facilities that are the subject of the easement. That does not mean, however, that a right to use facilities on a neighbour’s land, which that neighbour would usually maintain, is not capable of being an easement. Even if there is an understanding between the parties that the owner will maintain and repair the facilities on their own land, the neighbour’s right to use the facilities can still be an easement as long as the owner of the facilities does not have a legal obligation to the dominant owner for such maintenance. Although, in the case before the Supreme Court, the parties had intended that the owners of Broome Park would be responsible for maintaining the facilities, there was no obligation between them and the owners at Regency Villas for them to maintain or meet the cost of maintenance for any of the facilities. In fact, there was evidence that there was a general (if ultimately misguided) belief that the cost of maintaining the facilities would be met by income from fee-paying members of the public. If the owners stopped maintaining their facilities, there was a risk that the facilities would no longer be usable, but this limitation did not prevent the rights from being an easement. On this point, Lord Carnwath (one of the judges in the Supreme Court) dissented, reasoning that intensive management would be required to maintain the pool and golf course, and the rights to use such facilities, in such circumstances, should not be treated as easements. Part of modern life So, the Supreme Court has extended English law to recognise recreational easements as a new species of easement and – on the facts of Regency Villas – it determined that an easement did exist for the benefit of Regency Villas. The parties had intended to confer an easement on the owners of the Regency Villas land which was for the benefit of successors in title of the land. The grant of the rights related to the facilities complex as a whole (an 18-hole championship golf course and indoor swimming pool being particularly significant features which enhanced the attractiveness of a Regency Villas timeshare), without a corresponding obligation to contribute towards maintenance costs. As recreational and leisure activities clearly provide practical utility and benefit in modern life, the Supreme Court’s view is that the law should support structures which promote and encourage it. It is very much the case that each case will be decided on its facts, but as long as the four Ellenborough Park conditions are met, this new decision confirms that purely recreational rights which accommodate the dominant land can take effect as easements, potentially opening the door for more claims to easements for recreational use, and potentially constraining redevelopment of land currently enjoyed for sporting purposes. Tim Reid is a senior associate and Lien Tran is an associate at Hogan Lovells International LLP Photo: Design Pics Inc/REX/Shutterstock