The Supreme Court has recently decided on a case (Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another) that raised the issue of whether a right to use sporting and recreational facilities, such as a swimming pool, tennis courts and gardens (amongst others), can form the basis of an easement (a valid enforceable right over another person’s land) under the test set out in the case of Re Ellenborough Park.
At the centre of this case was a development of timeshare apartments in the early 1980s. The development consisted of a country estate that was subsequently divided between Elham House, which comprised the 26 timeshare apartments, and Broome Park, where the sporting and recreational facilities were located.
When the estate was divided, the transfer of the timeshare apartments contained for the respective owners a right from “time to time . . . 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 facilities were also used in common by members of the public, and it was intended that the income generated from them would cover the ongoing maintenance costs. The transfer of the apartments did not contain a clause requiring the owners to contribute towards the maintenance of the facilities.
The facilities began to fall into disrepair and the owners of the apartments made voluntary payments towards the upkeep and maintenance. In approximately 2000, the outdoor pool was filled in and an indoor pool was built in the basement of Mansion House (forming part of the Broome Park estate).
The owners of the apartments subsequently sought a declaration that they were entitled by way of an easement to the free use of all of the sporting and recreational facilities that may be provided at Broome Park.
This case worked its way through the High Court, Court of Appeal and finally to the Supreme Court, where it was held that the right to use sporting and recreational facilities as granted in the transfer in the early 1980s could form an easement.
Moving forward, this means that the grant of purely recreational rights over land could be capable of forming an easement provided that the four-point test in the Re Ellenborough Park case could be met.
This case is important as the Supreme Court has extended the law to recognise a new type of easement, and has tried to accommodate the common law to new types of property ownership and new ways of enjoying land.
It has significant implications for owners of an estate subject to recreational rights, or for developers considering granting such rights, as it may prohibit what the owner of an estate may be able to do with it in future. Estate owners and developers should therefore carefully consider the contents of any conveyances and transfers granting such rights to determine the extent of those rights and the repairing obligations/requirements for contributing towards repairs.
How we can help?
For advice relating to rights and easements, or indeed any other property law matters, please contact Paul Westwell at pwestwell@bromleys.co.uk or Martin Blaylock at mblaylock@bromleys.co.uk or on 0161 330 6821. Alternatively, you are welcome to attend any of our free legal surgeries – no appointment necessary.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.