Real property – Easement – Recreational facilities – Respondent timeshare owners seeking declaration of right to use leisure facilities on appellants’ adjacent estate free of charge – Judge granting declarations that easements existing and allowing respondents to exercise right without interference – Appellants appealing – Whether asserted rights capable of amounting to one or more easements – Appeal allowed in part
The first respondent was the freehold owner of Elham House, Canterbury. The house was split into two flats and there were 24 villas built in the grounds. Each villa was let on timeshares and accommodated six people. Each owner had the exclusive right to occupy a particular unit at specified periods each year and was obliged to pay charges for the upkeep and maintenance of the timeshare land to an unincorporated association set up to look after and represent the interests of the timeshare owners.
The first appellant was the freehold owner of the Broom Park Estate on which the timeshare land was situated and which included a mansion house, containing a billiard room, TV room, restaurant, bar, gym and sauna. There were sporting and leisure facilities on the estate, including a tennis court, outdoor swimming pool, gardens, golf course and squash courts. The swimming pool was later filled in and replaced by an indoor pool in the mansion house. The second appellant was the operator and leasehold proprietor of the golf course.
The respondents 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 respondent’s predecessor. They brought proceedings seeking a declaration that the rights they claimed were the subject of one or more easements created by the 1981 transfer in favour of the timeshare units. Judge Purle QC made declarations that the easements existed and allowing the respondents to exercise their rights free of charge without interference: [2015] EWHC (Ch); [2015] PLSCS 354.
The appellants appealed against that decision. Issues arose as to: (i) the proper construction of the grant in the 1981 transfer; (ii) the effect of the concession that there was no obligation to maintain the facilities; (iii) whether the judge was right to allow an easement over future facilities; and (iv) whether the judge should have examined each of the specific facilities over which the grant had been made.
Held: The appeal was allowed in part.
(1) The essence of an easement was to give the dominant tenement a benefit or a utility as such. Thus, an easement properly so-called would improve the general utility of the dominant tenement. Although easements had to retain their essential legal qualities, in the modern world, an easement should not be held to be invalid on the ground that it was mere recreation or amusement because the form of physical exercise it envisaged was a game or a sport. The dictum in Mounsey v Ismay (1865) 3 H & C 486, at page 489, was not binding on the Court of Appeal which would decline to follow it insofar as it suggested that an easement could not be held to exist in respect of a right to engage in recreational physical activities on servient land. The rights granted should not be too wide or vague and could not impose a positive obligation on the owner of the servient tenement. An easement was unlikely to be valid if it required the dominant owner to exercise a right to joint occupation or deprived the servient owner of proprietorship or legal possession. If the owner of the dominant tenement had to take actual occupation or possession of part of the servient tenement in order to give continued effect to the easement, for example to play golf, that fact might point against the existence of such an easement in the first place: In re Ellenborough Park [1956] Ch 131 applied.
(2) The proper construction of the grant was not as extensive as the judge held. It was important to construe the grant in the context of where it was found in the 1981 transfer. It was a reasonable inference from the fact that the grant was the third of three grants, the first two of which were recognised easements, that it was also intended to be an easement. The court would normally lean in favour of the validity of a grant but parties who wished to achieve the grant of a future easement would be expected to make clear the extent of what they intended.
In the present case, the most natural meaning of the words used in the grant was the right to use the existing facilities as they stood at the date of the transfer, together with any new, improved or replacement facilities of the same kind replacing the existing facilities on the same areas of land, subject to only minor or de minimis extensions, but not any substantial extensions of such facilities on additional areas of land.
(3) The absence of any obligation on the appellants to keep their business open or to maintain their facilities was not decisive as to the existence of one or more valid easements: Carter v Cole [2006] EWCA Civ 398 followed.
(4) The grant was not of a free-ranging easement or easement at will over future facilities. It was an attempt to grant an easement of various specified sporting and recreational facilities that existed on the appellants’ land at the time of the grant.
(5) The judge ought to have unpacked the grant and considered each of the purported easements in turn, particularly as some of the grants had never before been specifically recognised by English law. Dealing with each of the facilities in turn, valid easements had been granted in respect of the gardens, tennis and squash courts, putting green, croquet lawn outdoor swimming pool and golf course. The utility and benefit to a dominant dwelling or timeshare property of the ability to use a next-door tennis court or awimming pool was obvious to the modern owner. There was no need for any shared or actual occupation for the respondents to be able to use the tennis or squash courts. If the appellants failed to maintain the courts or greens the respondents could maintain them and provide any chattels necessary to use those facilities and water for the swimming pool. However, there had been no valid grant of easement over the basement of the mansion house. The grant of the right to use recreational facilities in the mansion house was no more than a personal right to use chattels and services provided by the appellants and the declarations granted by the judge were too broad in that respect.
Andrew Latimer (instructed by Pannone Corporate LLP) appeared for the appellants; John Randall QC and Marc Brown (instructed by Shakespeare Martineau LLP) appeared for the respondents.
Eileen O’Grady, barrister
