A right to recreation?Print publication
In the recent case of Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another  the High Court considered the possibility that an easement could exist to use leisure facilities including a golf course, swimming pool and tennis court. 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 preventing an easement such as this being granted.
What is an easement?
An easement is right benefitting a piece of land (the dominant land) that is exercised and enjoyed over another piece of land owned by a third party (the servient land). Unlike a personal right, an easement is a proprietary interest that ensures for the benefit of the dominant land and, subject to having been validly registered, binds the successors in title of the owners of the servient land.
To exist as an easement a right must have the following characteristics, established in the case of Re Ellenborough Park :
- 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
- The right must be capable of forming the subject matter of a grant.
The first requirement, that there must be dominant and servient land, means that an easement, unlike for example a profit à prendre, must be used in connection with a piece of land .
To be an easement the right must accommodate the dominant land in that it must be reasonably necessary for the better enjoyment of that land. The easement must be linked to and benefit the dominant land in some way and it cannot simply confer a personal advantage on the owner of the land.
Whether or not the third characteristic is satisfied is obvious, as “you cannot have an easement over your own land”  and if ownership of both the dominant and servient land subsequently vests in one person the easement is extinguished.
All easements must be granted expressly or are assumed to have been granted impliedly or by prescription. A right to do a positive act on the servient land can be the subject matter of a grant and therefore satisfy the fourth characteristic. Negative easements have also been recognised, for example a right to light and air is a right to receive something from the servient land without any obstruction or interference, albeit it has been suggested that these rights should really only exist as restrictive covenants and not as negative easements.
When considering whether a right fulfils the fourth characteristic, Re Ellenborough Park identified three questions, the answers to which will determine whether the test is satisfied:
- Whether the right is expressed in terms that are too wide or vague
- Whether the right would amount to a right of joint occupation or substantially deprive the servient owners of legal possession of their land
- Whether the right would constitute merely a right of recreation and therefore have no quality of utility or benefit.
A failure to demonstrate these characteristics means that a right is likely to be merely a personal permission.
The claimant company owned the freehold of land on which were constructed the timeshare units (the timeshare land) with that land effectively held on trust for the owners of the timeshare units. The defendant company owned an adjacent estate on which various leisure and sporting facilities including tennis and squash courts, swimming pool, gold course and gardens were situated (the estate). The timeshare land was transferred to the claimant company’s predecessor in title in 1981 by a transfer that granted rights for the transferee and their successors in title, tenants and occupiers to use the sporting and leisure facilities on the transferor’s adjoining estate.
The defendant company disputed the claimant’s rights to use the sporting and leisure facilities free of charge and the claimant therefore needed to establish that the rights took effect as easements.
The court held that the rights to use the facilities did, indeed, take effect as easements. The first three limbs of the test in Re Ellenborough Park were easily met. There was clearly dominant and servient land (the timeshare land and the estate respectively) which had been owned by different persons since the transfer in 1981. The rights evidently accommodated the dominant land as the use of the facilities was connected with the enjoyment of the timeshare land. The question therefore was whether the fourth limb of the test, whether the rights were capable of forming the subject matter of a grant, could be satisfied.
The rights were not vague or excessive as they clearly extended to all leisure and facilities on the estate at any time, not only those that were in existence in 1981. To limit the rights to the facilities that existed at the time of the 1981 transfer was unrealistic as it might inhibit the owners of the estate from adding facilities which would be for the benefit of everyone. If the rights did not extend to new or replacement facilities this might interfere with the timeshare owners existing rights which could not have been intended.
In Re Ellenborough Park the use of a pleasure ground took effect as an easement. If a right permitting a dominant owner to walk over servient land purely for pleasure could exist as an easement then it was a small step to extend that to the use and enjoyment of leisure and sporting facilities. The objection that a mere right of recreation could not be an easement was misleading and the key was in the use of the word ‘mere’. A right which did not benefit dominant land and was wholly extraneous to its use might fail the test but provided the rights accommodated the dominant land, as these rights accommodated the timeshare land, then there was no legal impediment to the grant of an easement to use recreational facilities such as a golf course, swimming pool or tennis court. Furthermore to construe these rights as purely personal would have the unexpected consequence that they would fall away on a transfer of the timeshare land which clearly had not been intended as they were expressed to benefit successors in title.
Therefore on the proper construction of the grant considered in light of the surrounding circumstances, the court could do nothing other than construe the rights in this case as easements.
This case provides the first authority on the question of whether the use of recreational, leisure or sporting facilities can take effect as easements and highlights that the class of possible easements is not closed. Any right that demonstrates the characteristics established by Re Ellenborough Park is capable of taking effect as an easement. If the desire is to grant personal rights, care must be taken when drafting in order to prevent them being construed as easements. Careless drafting could give rights which bind not only the original grantor but also their successors in title.
  EWHC 3564 (Ch)
  EWCA Civ 4.
 Profits à prendre are rights to take something from another person’s land and these can exist independently (in gross).
 As per Lord Esher in Metropolitan Ry v Fowler  1 QB 165