In Re Ellenborough Park [1956] Ch 131 Sir Raymond Evershed MR identified four key components of an easement. There must be a dominant and a servient tenement. Each must have a different owner and the right in question must be capable of forming the subject matter of a grant. Finally, the right claimed must serve the dominant tenement and be reasonably necessary for the better enjoyment of that land. Therefore, it must benefit the owner of the dominant land in his capacity as its owner, and not personally.
It has sometimes been said that the right to use a tennis court or swimming pool cannot constitute an easement. Indeed, in Moncrieff v Jamieson [2007] UKHL 42, Lord Scott commented, in passing, that he believed that a right to use a swimming pool would constitute a personal contractual right, at best. What, then, are we to make of Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2015] EWHC 3564 (Ch); [2015] PLSCS 354?
The case concerned rights included in an intra-group transfer of land that formed part of a timeshare development. In addition to rights of way and rights for the passage of services, the transferor granted the transferee rights to use a swimming pool, golf course, squash courts, tennis courts, gardens and any other sporting or recreational facilities on the retained land. The instrument has long since disappeared without trace, but the registers of title suggested that the owners and occupiers of the land that had been transferred were entitled to use the recreational facilities free of charge.
Could such rights take effect as easements? The owners of the facilities claimed that the rights were personal to the parties to the intra-group transfer and were incapable of running with either parcel of land. If this was correct, and the rights did not take effect as easements, the owners of the facilities could charge whatever they wished for their use.
The judge held that rights of recreation can constitute easements, so long as they accommodate dominant land, are not too wide or vague, do not amount to rights of joint occupation, and do not deprive the servient owner of proprietorship or legal possession. In addition, it must be evident, on the proper construction of the grant construed in the light of the surrounding circumstances, that the rights granted were intended to be easements.
After considering the facts, the judge held that the facilities were connected with and part of the normal enjoyment of the timeshare land. Therefore, they accommodated that land. There was nothing vague or excessive about the rights granted and the owners of the facilities retained possession and control of their estate. Rights cannot take effect as easements if their existence would require a landowner to spend money or to carry on a business. However, the owners of the facilities were free to neglect them if they chose, although it was not in their commercial interests to do so.
The court might lean towards a construction that such rights are personal in a purely domestic context. However, the judge could not see any compelling reason to construe these rights as being personal to the parties to the intra-group transfer. They formed part of a group of rights that were clearly easements. Furthermore, they were expressed to benefit successors and occupiers from time to time and were to be construed as easements.
Allyson Colby is a property law consultant
