Easements of recreation: a new species

I t is rare for the consideration of easements to reach the lofty heights of the Supreme Court, but such an occasion arose last year in the case of Regency Villas Title Ltd & others v Diamond Resorts (Europe) Ltd & others [2018] UKSC 57 – resulting in the boundaries of the law being strained and a new species of easement being recognised. This case concerned an estate in Kent which had once been the home of Lord Kitchener. In 1979, the upper floors of the main house were converted into timeshare apartments and a large number of recreational facilities were built, including an outdoor swimming pool, a championship-standard golf course and tennis courts.

A lease was granted of the timeshare units. This was drafted so as to confer upon the owners of the timeshare units the free use of the recreational facilities, with the landlord covenanting to keep them in good repair. The timeshares were a great success prompting the building of more timeshares in the grounds in 1981. The contemporary marketing material promoted the same free use of the recreational facilities. But for reasons that are not altogether clear, rather than a leasehold structure a freehold was granted including the grant of ‘easements’ for the use of the recreational facilities for the latter timeshares. The critical issue was whether the transfer in 1981 successfully granted proprietary rights to the lessees and occupiers of the new timeshares in the form of easements, or whether it merely granted personal rights to the original transferees.

A back-to-basics approach was required and the Supreme Court reminded itself of the four essential characteristics of an easement identified in In re Ellenborough Park [1956] Ch 131, namely:
— There must be a dominant and servient tenement;
— the easement must accommodate the dominant tenement;
— the dominant and servient owners must be different persons; and
— a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

As is often the case, the focus of attention was on the second and fourth characteristics. The key argument as to whether the easement accommodated the dominant tenement was whether a right to use the recreational facilities was an end in itself, as opposed to a right which benefited the dominant tenement. Could, for example, a round of golf be said to benefit the enjoyment of the timeshare apartment? The Supreme Court had little difficulty in concluding that it could. In re Ellenborough Park was good authority for this proposition. While the central argument in that case had been whether the use of gardens benefited the dominant properties (which it plainly did), Evershed MR also referred to the enjoyment extending to “… parts … set apart for particular recreations such as tennis or bowls”. In the present case it was of importance to the Supreme Court that the dominant properties were timeshare apartments on an estate largely devoted to recreational pursuits. Lord Briggs, with whom the majority agreed, said: “Although in terms of legal memory timeshare is a relatively recent concept, timeshare units of this kind are typically occupied for holidays, by persons seeking recreation, including sporting activities, and it is to my mind plain beyond a doubt … that the grant of rights to use an immediately adjacent leisure development with all its recreational and sporting facilities is of service, utility and benefit to the timeshare apartments …” It may be that this will, in future, prove to be a ground on which to seek to limit Regency Villas to its own facts, or at least distinguish it. In concluding, Lord Briggs commented: “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 will generally be satisfied.” That plainly begs the question of what the position will be if the use of the dominant tenement is not itself recreational but is, for example, residential.