Purely sporting or recreational rights over land are capable of being easements, the Supreme Court has confirmed.
In a judgment handed down today the Court held that, so long as such rights satisfy the four well-established characteristics of easements, there is no reason why they should not be easements (Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and others  UKSC 57).
The recreational rights in this case were therefore binding on new owners of the burdened land and remained enforceable by successors to the benefitting land.
Broome Park was acquired by a developer and a timeshare and leisure complex was constructed on it. The complex featured extensive leisure and recreational facilities which the individual timeshare owners had a right to use, for free, by virtue of a lease from the developer to the complex's "owners club".
Later, the developer also acquired the neighbouring Elham House and developed further timeshare apartments there. A freehold, as opposed to leasehold, structure was adopted for the Elham House timeshare and it was transferred to a trustee for the intended timeshare owners.
The 1981 that transfer included a grant of rights 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, the ground and basement floors of the sporting or recreational facilities … on the [Broome Park] estate."
Subsequently, some of the facilities were withdrawn following funding problems. Ultimately, the owners of Broome Park disputed any right of the Elham House timeshare owners to use the facilities at Broome Park.
The Elham House timeshare owners claimed a formal legal easement to use the facilities from time to time provided at Broome Park and an injunction to prevent interference with those rights. They were successful on all points at trial. Whilst the Court of Appeal agreed with the trial judge on the main point that recreational rights could form an easement, it revered his decision other technical grounds. The decision was appealed to the Supreme Court.
The key issue before the Supreme Court was whether or not the purely sporting and recreational rights granted in the 1981 transfer were capable of forming easements.
Construing the 1981 grant of rights, the Court decided that the intention of the parties was to create a formal property right as an easement, and that the right was to use the facilities as they existed from time to time (not as fixed in 1981). The Court also observed that there was no express requirement for the Elham House timeshare owners to contribute to the costs of maintaining and operating the facilities, which could have been imposed if intended.
The Court considered in detail the leading case on easements – In re Ellenborough Park  Ch 131 (CA), which had established the four essential characteristics of an easement:
The first and third characteristics being clearly satisfied in this case, the Court's consideration focussed on the second and fourth.
The second characteristic requires the easement to be used in connection with the better enjoyment of a parcel of land, rather than just for the enjoyment of an individual. Sporting rights, being typically enjoyed for their own sake by an individual, might be thought to breach this requirement. However, the Court confirmed that such rights can be easements, provided they genuinely accommodate the benefitting land. Where the benefitting land is itself used for recreational purposes (e.g. as timeshare holiday accommodation), attached recreational facilities would clearly offer practical benefit to, and accommodate, that land.
The fourth characteristic encapsulated a series of miscellaneous requirements which have in past cases been used to deny an easement. These include that the right is sufficiently well defined, that it is not liable to be taken away at the whim of the burdened owner, and that it is not so extensive as to "oust the servient owner from the enjoyment or control of the [burdened land]". None of these barriers to an easement applied on the facts of this case.
The decision is a clear statement of the Supreme Court, binding on lower courts, that "purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement". In the context of diverse modern land uses and in particular a growing recognition of the benefits of leisure, sporting and recreational activities, this is likely to be widely welcomed.
The decision also re-affirms and refines the Ellenborough Park essential characteristics of an easement. This increased clarity has to be welcomed.
Importantly, this decision breaks new ground by allowing easements over a vast range of facilities (swimming pool, golf course, stables) requiring a great deal of management and maintenance. Further, such management and maintenance require significant expenditure by the burdened owner, whereas in Ellenborough Park the maintenance costs of a communal garden were shared amongst the benefitting owners.
A leasehold structure, which allows mutual enforcement of positive obligations, would have been a more appropriate vehicle under which to set up the Elham House timeshare. By holding that valid freehold easements existed in this case, it could be argued that the Supreme Court has endorsed a freehold structure which should never have been adopted.
The law of easements could be criticised as being outdated regardless of the outcome of this decision. The Law Commission recommended in 2011 the "simplification of the law relating to the creation of easements", but their proposals have so far escaped the attention of government law makers.
For now, the law of easements as we know it is here to stay, but the Supreme Court has shown it will not shy away from a bold application of the existing law to modern land uses.
Contributor: Matt Battensby
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2018. Specific advice should be sought for specific cases. For more information see our terms & conditions.
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