Regency Villas v Diamond Resorts – An enduring right to recreation?Print publication
An easement is a lasting right which endures despite changes in ownership of land. The High Court has recently considered whether a right to recreation can take effect as an easement.
In the case of Regency Villas Title v Diamond Resorts (Europe) the High Court considered the possibility that an easement could exist to use leisure facilities including a golf course, swimming pool and tennis court. Unlike a personal right, an easement is a proprietary interest that, subject to having been validly registered, endures with the benefitted land and binds successors in title of the owners of the land over which the right is exercised. The court held that, provided the intention to grant an easement is evident when considered in the context of the surrounding circumstances, there is nothing to prevent an easement such as this.
This case provides the first authority on whether the use of recreational, leisure or sporting facilities can take effect as an easement. In fact, the case goes further and highlights that any right which demonstrates the following characteristics is capable of taking effect as an easement:
- There must be dominant land (to enjoy the benefit of the easement) and servient land (over which the easement is exercised);
- The right must accommodate or benefit the dominant land;
- The dominant and servient land must be owned by different people; and
- The right must be capable of forming the subject matter of a grant.
- (That is, the right must be expressed in language which is not too wide and vague and the right must be granted expressly or can be assumed to have been granted impliedly or by prescription. A right to do a positive act on the servient land can clearly be the subject matter of a grant, but rights to receive something, such as light or air, are more difficult. There is conflicting opinion as to whether these more negative rights should exist only as restrictive covenants, as opposed to easements which can be granted).
For further information and advice, see A right to recreation?