The Supreme Court has recently confirmed the Court of Appeal’s decision in Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another and, as such, recreational rights can exist as easements – which are capable of registration to bind and benefit land.
The facts of the case concerned timeshare properties, and whether they could rely on a right to access the facilities of a neighbouring property by virtue of a right granted in 1981. The facilities included a golf course, squash courts and an outdoor swimming pool.
Points in dispute
The starting point is the four basic characteristic of easements, as set out in the case of Re: Ellenborough Park:
1. There must be dominant land (i.e. benefitting land) and servient land (land subject to the right).
2. The right must accommodate the dominant land.
3. The dominant and servient land must be owned by different persons.
4. The right must be capable of forming the subject matter of a grant.
Re Ellenborough Park also highlighted that, in the construction of an easement, it must be considered whether such right would constitute a mere right of recreation, possessing no quality or utility or benefit.
The Supreme Court was concerned with whether the fairly substantial recreational rights at issue in this case could benefit the dominant land (the timeshare units), and whether such rights were capable of forming the subject matter of a grant.
Regency Villas sought a court order stating they were entitled to use the recreational rights, which they claimed without any contribution to the costs.
To quote Lord Briggs who gave the leading judgment:
“The grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions which I have described. Where the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied.”
The Court held that the recreational rights did benefit the dominant land. The dominant land was the timeshare properties, and the use of the facilities was a real and tangible benefit to the owners of the timeshare properties.
Secondly, the Court held that the right could form the subject matter of an easement, despite the structures requiring maintenance over time.
The Court also held that the rights were not limited to the facilities present at the time of the grant, and the right would in turn apply to the facilities should they be amended.
This is an important case settling the principle that recreational rights can be easements. But it will be necessary to assess the facts in each case, as the Regency Villas case concerned timeshare properties. As such, recreational rights as those in question are usually considered of benefit to such properties. Whether the same could be argued for private dwellings remains to be seen.