Recreational rights can constitute easements
Every land law student knows that a right to use communal gardens qualifies as an easement, thanks to Re Ellenborough Park [1956] Ch 131). However, it was widely believed that recreational rights do not constitute easements. In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2017] EWCA Civ 238; [2017] PLSCS 84 the Court of Appeal was asked to consider whether this was correct for the very first time.
The case concerned rights included in an intra-group transfer of land that formed part of a timeshare development, to use an outdoor swimming pool, golf course, squash courts, tennis courts, putting green, gardens and other recreational facilities. Did the rights take effect as easements? If not, they were incapable of running with land and, because the servient land had changed hands almost immediately after the intra-group transfer, any rights that did not constitute easements had been lost. In addition, the owners of the facilities had replaced the outdoor pool with an indoor facility, had extended the golf course, and had made other changes and additions over the years. What effect had this had on any rights that had survived?
The owners of the facilities argued that the rights granted did not qualify as easements. The trial judge disagreed. He took his cue from Ellenborough Park and decided that it was a relatively small step from that to the enjoyment of sporting and other recreational facilities. Was he right? The Court of Appeal agreed that rights to play games or to engage in sporting activities can constitute easements, but reminded us that an easement is a right over land, and not a right to use services, equipment or chattels.
Every land law student knows that a right to use communal gardens qualifies as an easement, thanks to Re Ellenborough Park [1956] Ch 131). However, it was widely believed that recreational rights do not constitute easements. In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2017] EWCA Civ 238; [2017] PLSCS 84 the Court of Appeal was asked to consider whether this was correct for the very first time.
The case concerned rights included in an intra-group transfer of land that formed part of a timeshare development, to use an outdoor swimming pool, golf course, squash courts, tennis courts, putting green, gardens and other recreational facilities. Did the rights take effect as easements? If not, they were incapable of running with land and, because the servient land had changed hands almost immediately after the intra-group transfer, any rights that did not constitute easements had been lost. In addition, the owners of the facilities had replaced the outdoor pool with an indoor facility, had extended the golf course, and had made other changes and additions over the years. What effect had this had on any rights that had survived?
The owners of the facilities argued that the rights granted did not qualify as easements. The trial judge disagreed. He took his cue from Ellenborough Park and decided that it was a relatively small step from that to the enjoyment of sporting and other recreational facilities. Was he right? The Court of Appeal agreed that rights to play games or to engage in sporting activities can constitute easements, but reminded us that an easement is a right over land, and not a right to use services, equipment or chattels.
The most natural meaning of the words used indicated that the grant extended only to sporting and recreational facilities (and not to anything else). And, because there was no element of futurity in the words of grant, they could not be construed as including any future facilities that might be constructed anywhere else on the servient land. The grant was wide enough to encompass a new or improved facility, which replaced an existing facility of the same type on the same area of land, but did not cover any major extensions, substitutions or moved facilities (which put paid to the users’ claims to be entitled to use the new indoor swimming pool).
Most of the rights granted did constitute valid easements (including the right to use the original outdoor swimming pool, which had since been filled in). The court’s answer to arguments that the rights did not qualify as easements because the facilities needed to be maintained at considerable expense was that, if the owners of the servient land were to stop maintaining the facilities, the owners of the dominant land would be entitled to do this themselves This would not involve actual or even shared possession of the facilities (which might negate the existence of an easement) and users could supply their own equipment to play games of golf, tennis, squash and croquet.
But the rights to use the indoor facilities, such as the billiard and television rooms, and to use the restaurant, bar, gym, sunbed and sauna areas did not qualify as easements. Without the services or chattels that made them what they were, there would be nothing to use unless the owners of the dominant land were to take full possession of the areas in question.
Allyson Colby is a property law consultant
