A right to play

The Supreme Court has held that rights to use sporting and leisure facilities can be easements, even where some of the facilities were constructed after the date when the easement was granted.

In our article Rights to use sporting facilities held to benefit landowners we reported on the High Court’s decision in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd. That case has since been appealed to the Court of Appeal and now to the Supreme Court.

The facts

The case concerned timeshare units at Elham House in Canterbury. In 1981, a transfer of the land granted rights over the adjacent estate. These included a right of way, a right to use services and a right to use 'the swimming pool, golf course, squash courts, tennis courts... and any other sporting or recreational facilities on the ...adjoining estate'.

A dispute arose between the owners of the timeshare land and the owners of the estate over the nature of the right to use the recreational facilities. The timeshare owners sought a declaration that they were entitled to use the sporting and recreation facilities by right – as easements – and, accordingly, free of charge.

The estate owners insisted that the right to use the recreational facilities was personal and so effective only between the parties to the transfer. As such, the right would not run with the land so as to benefit or bind successors in title to the original owners. Anyone else now wishing to use them would have to pay to do so.

The law

The four essential characteristics of an easement were described by the Court of Appeal in the case of Re Ellenborough Park [1956] Ch 13. In Regency Villas, two characteristics were clearly satisfied: there was a dominant tenement and a servient tenement (i.e. land that benefited from the rights and land burdened by them) and the owners of each were different.
However, the court had to decide whether the two other requirements were satisfied:

• did the recreational rights accommodate the dominant tenement?;
• were such rights capable of being the subject matter of a grant?

The decision

In its report ‘Making Land Work: Easements, Covenants and Profits a Prendre’ in 2011, the Law Commission explained the requirement for the easement to accommodate the dominant land as follows:

‘The requirement is that the right must be of some practical importance to the benefited land, rather than just to the right-holder as an individual: it must be ‘reasonably necessary for the better enjoyment of that land.’

Lord Briggs, giving the judgment in the Supreme Court, noted that the controversy in this case arose because the rights granted were recreational and sporting in nature and so could be described as being an end in themselves, rather than a means to an end i.e. for the more enjoyable or full use of the dominant land.

However, the dominant tenement was used as timeshare apartments. These are typically occupied for holidays by people seeking recreation, including sporting activities, and so the grant of rights to use an adjacent leisure development was of service, utility and benefit to the timeshare properties. As such, the rights did accommodate the dominant tenement.

Lord Briggs remarked that whatever might have been the attitude in the past to “to mere recreation or amusement”, recreation and sporting activity is “so clearly a beneficial part of modern life’ that the law should help ‘promote and encourage it, rather than treat it as devoid of practical utility or benefit”.

Having held that the nature of the rights granted did not prevent them from comprising an easement, the court held that the wording of the grant was sufficiently clear and precise to be able to constitute an easement, dismissing public policy objections put forward by the estate owners. This meant that all the conditions for creation of an easement were satisfied.

The court went on to overturn the Court of Appeal’s decision that the right to use the swimming pool could no longer be effective because the original outside pool had been filled in and replaced by an indoor pool. It said the Court of Appeal was wrong to construe the easement as the grant of separate rights in relation to each facility. This ‘failed to see the wood for the trees’: it was unrealistic to construe the rights as limited to the actual facilities on site or planned in 1981. Instead, the easement was a single right to use all such recreational and sporting facilities as might be provided from time to time within the estate – this meant that the right to use the swimming pool continued even though a new pool had been substituted for the original one.

Conclusion

The recognition of a new species of easement has led some to suggest that timeshare and other properties owners may now begin to question whether, and how extensively, they can enforce rights against a range of facilities. Whilst that could be the case, every case depends on its facts - and in any case where an easement is claimed, it will remain essential to demonstrate that the four key criteria for an easement have been met. Without these all being present there can be no easement.

In the words of Lord Briggs:

“…the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions… Where the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied. Whether the other conditions … will be satisfied will be a question of fact in each case.”

Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57