Anyone for tennis?

The High Court recently had to decide whether an easement (a legal right over property) can exist to use a tennis court, golf course or swimming pool.

In this case (Regency Villas Title Limited and Others v  Diamond Resorts (Europe) Limited and Another [2015 EWHC 3564 (CH)], the Company was the freehold owner of land and buildings (a timeshare property) on which timeshare units were built and all the timeshare owners had the usual type of timeshare rights to occupy a particular unit for a particular week in each year.  Next to the timeshare property was an Estate with leisure facilities including tennis courts, swimming pool, golf course, squash courts and a garden.  These facilities were also open to the paying public.

The timeshare property had been transferred to the Company’s predecessor in 1981 and in the Transfer, the timeshare land had been granted the benefit of a set of rights.

The actual wording under consideration in this case was :

“and thirdly the right for the Transferee, its successors in title… and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor, Broom Park Mansion House, gardens, and any other sporting or recreational facilities (hereinafter called “the Facilities”) on the Transferor’s adjoining estate”.

The Company owning the timeshare property argued that these rights took effect as legal easements. The owners of the Estate argued that the rights to use the Facilities were purely personal rights between the parties to the 1981 Transfer and that they were incapable of running with the land and therefore did not benefit successors in title.  There were no charging provisions for the use of the Facilities in the 1981 Transfer, so if the right to use them took effect as a legal easement, the use would be free of charge.

The High Court decided that the use of the Facilities took effect as easements. It decided that an easement of this nature was legally possible provided that the intention to grant an easement (as opposed to merely granting a personal right) is present on the proper construction of the language of the document construed in the light of all the material surrounding circumstances.

For a right to exist as an easement it must have four characteristics :

There must be both dominant land (which enjoys the benefit of the easement) and servient land (over which the easement is exercised);

  1. The right must benefit or accommodate the dominant land;
  2. The dominant and servient land must be owned by different people;
  3. The right must be capable of forming the subject matter of the grant.

(These four limbs are the characteristics set out in the leading case re Ellenborough Park [1955]).

The key issue in this case was whether this fourth requirement was satisfied. The Estate’s argument that the rights in question could not qualify as easements because they amounted to no more than mere rights of recreation and were merely personal rights, failed.

This case is a useful reminder that the class of possible easements is not closed and never will be and that when deciding whether a right is capable of satisfying the fourth limb of the test, a court will look at :

Whether the rights are expressed in language which is too wide and vague;

  • Whether such rights would amount to rights of joint occupation or substantially deprive the owner of the servient land of possession; and
  • Whether such rights would constitute mere rights of recreation, possessing no quality of utility or benefit.

Anyone for tennis!

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Roderick Campbell

Partner, Head of Commercial Property

Roderick has specialised in property law for 30 years. He trained with Hart Brown, qualifying in 1985 and became a Partner in 1990. He specialises...

Partner, Head of Commercial Property

Roderick Campbell

Roderick has specialised in property law for 30 years. He trained with Hart Brown, qualifying in 1985 and became a Partner in 1990.

He specialises in all aspects of non-contentious commercial property work including freehold and leasehold acquisitions and disposals; residential development work; options; conditional contracts, development agreements and land promotion agreements. He acts for a broad range of clients including property companies, developers, owner/occupiers and SMEs.

Hart Brown is recognised in the Legal 500 for real estate work in the South East and the entry states “Roderick Campbell provides “practical and pragmatic advice” and is a “first class” communicator.”

In 2008 he published a book on “Methods of Securing Development Land Overage”. He also holds an LLM Masters Degree in Advanced Commercial Property Law with distinction.

He is a member of the Law Society Property Group and LawNet Commercial Property Group.

His most memorable case was acting for a landowner on the grant of an Option Agreement concerning an M25 service area which lasted for some 12 years between exchange and completion!

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