RESOURCES | The right to play

Can recreational rights exist as legal easements, running with the land? A High Court decision has recently provided clarity on a point which until this time had no previous authority, writes Aisha Goulbourne of Hill Dickinson.

In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd, the High Court took the view that the right to use sporting facilities constitutes an easement and so benefits anyone who becomes the owner of the land in the future.

The case considered whether the right to use a swimming pool, golf course or tennis court is capable of being classed as an easement.  The case concerned the 1981 grant of:

“the right for the transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts… and any other sporting or recreational facilities on the transferor’s adjoining estate”

Regency Villas was the proprietor of a plot of land on which 26 timeshare units were built.  The land was formerly part of the adjoining Broome Park estate, which contained leisure facilities including a tennis court, golf course, gardens, squash courts and a swimming pool.

When the timeshare land was transferred to Regency Villas’ predecessor in 1981, the transfer of the timeshare land granted a right for the transferee, its successors in title, lessees and the occupiers from time to time to use the leisure facilities on the transferor’s adjoining Broome Park estate. The timeshare owners therefore took the view that they had easements over the amenities, and could use them without charge.

The argument was whether this was a right capable of running with the land, benefitting and binding successors in title.

The Court concluded that the right to use the leisure facilities was an easement, which effectively meant that the timeshare owners had the right to use the leisure facilities free of charge.

In 1956, in Re Ellenborough Park, the Court of Appeal identified the four key characteristics of an easement:

• there must be a dominant tenement and a servient tenement (i.e. land benefited by the easement and land subject to it – as easements benefit land, not people)
• an easement must accommodate (i.e. benefit) the dominant tenement
• the dominant and servient owners must be different people
• the right must be capable of being the subject matter of a grant

While agreeing with previous cases (including Re Ellenborough Park itself) that rights of ‘mere recreation’ are incapable of forming the subject matter of an easement, the High Court held that there is no legal impediment to the grant of an easement for the right to use a swimming pool, golf course or tennis court. This demonstrates that, where certain criteria are met, a right over land really can exist when an assumption may be that the use is personal to individuals.

This case is a useful reminder that the class of possible easements is not closed and that any right having the characteristics set out in Re Ellenborough Park is capable of taking effect as an easement. This decision provides a welcome authority, as there was previously no English (or Scottish) authority on whether the right to use a golf course, swimming pool or tennis court is capable of being an easement.

So, another new easement is recognised by the courts. This is a very significant outcome for those owning and advising on timeshare developments and anyone involved in the holiday, leisure and sports sectors. Ultimately it demonstrates that use of leisure facilities can amount to binding property rights and are not just personal contractual rights.

The case also shows that property law can alter and adapt to meet the needs of modern society.

This article was originally published through Place Resources