Rights to Recreation Added to Possible Classes of Easement

The right to do something on someone else’s land (such as use a track or lay pipes) in perpetuity appears to be a pretty simple concept.  In practice, what the law calls “easements” are more complex to define.  A recent case has made the definition of what can constitute an easement wider.

Starting with brass tacks: what is an easement?  An easement is a right which benefits a piece of land (called the “dominant land”) which is enjoyed over another piece of land owned by someone else (the “servient land”).  Easements are rights which exist for ever (i.e., in perpetuity) or are granted for a term certain (e.g., in a lease) and are not rights which are merely personal; they “run with the land”.

Usually, the easement is positive – it allows the owner of the dominant land to “do something” on the servient land, but it can be negative – e.g., preventing the owner of the servient land with interfering with a right to light enjoyed by the dominant land.

Because easements run with the land and last in perpetuity, the law restricts what classes of right can constitute an easement.  There are, therefore, fairly narrowly defined classes of easement – most usually these are:

• Rights to use pipes or drains.
• Rights of way and limited rights to park.
• Rights to discharge water into a watercourse.
• Rights of light, air and support.
• Limited rights to use a communal garden.

There are classes of right which cannot constitute an easement.  These include:

• Licences and personal rights.
• An arcane class known as ‘profits à prendre’ (rights to take natural produce from another’s land, e.g., fish, minerals, fruits).
• Public and customary rights.
• Rights of mere recreation and amusement.

It is the last class of right, that of recreation, which was the subject of a recent case, Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd (2017).  Rights were granted in a transfer of some timeshare accommodation “to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities”.

The question in the case was whether the rights were anything more than merely personal rights; if they were personal rights, they would have expired, since neither of the original parties to the transfer owned the dominant or servient land.

The trial judge decided that the rights enhanced the enjoyment of the timeshare units and were therefore easements.  The case went to the Court of Appeal.

The Court of Appeal decided:

• The rights granted were to use the sporting or recreational facilities in existence at the time of the transfer. Future facilities in a new location were not  The outdoor swimming pool, for example, had been filled in and a new indoor one constructed elsewhere on the site.  The rights did not extend to the use of the new pool.
• The rights did cover the right to use new or improved facilities that replaced existing facilities of the same type on the same area of land.
• Easements are supposed to improve the general utility of the dominant land by benefiting a trade carried on there or the utility of living there. Because physical exercise is now an essential or desirable part of life (and not mere recreation or amusement), rights should not be prevented from qualifying as easements just because they involve games or sports.  (This is the extension of the established principle in this area of law.)
• The fact that the facilities could be closed at any time and involved expense to maintain in working order did not stop them being the subject of valid easements now.
• The rights to use the gardens, squash courts, tennis courts, croquet lawn, putting green and 18-hole golf course were all held to be valid easements. Even the right to use the original outdoor pool would have qualified as an easement (were the pool still in existence).
• The rights to use the billiard and TV rooms, the restaurant, bar, sunbed, sauna and gym did not qualify as easements. This is because an easement is a right over land; without the services and equipment in those rooms being maintained, there would be nothing for the timeshare owners to use, unless they took those rooms over and ran them themselves.

There is, therefore, now the possibility that rights to use leisure facilities granted in a lease or by a transfer or deed can be the subject of easements (and therefore last in perpetuity and run with the land) in certain circumstances.  This could have the effect of constraining the owners of leisure facilities when it comes to thinking about redevelopment.  It is necessary to consider carefully the long-term ramifications of granting these type of rights.