The Supreme Court has confirmed that recreational rights can qualify as easements. A number of points arise from the decision.
The Supreme Court in Regency Villas Title Limited v Diamond Resorts (Europe) Limited  UKSC 57 by a majority has confirmed that recreational and sporting rights can qualify as easements. The case concerned a grant of a right to use facilities comprised in a leisure complex on part of an adjoining property. Lord Carnworth in his dissenting judgment described the right as akin to membership of a country club. The grant was contained in a transfer of the building divided into time shares. With the passage of time the leisure complex owner had wanted to charge the timesharers for their use and they contended that the right qualified as an easement and so they did not have to pay fees for use.
For a full discussion of this case go to the link at http://www.christophercant.co.uk/conveyancing_and_property_issues/ Important points arising from the decision are:-
(i) the crucial point for the Supreme Court was that the dominant tenement comprised apartments subject to a time share arrangement. It was considered important that property law should develop to accommodate new forms of property right.
(ii) a right should not be disqualified from being an easement merely because it is a recreational or sporting right.
(iii) it must, however, have the four characteristics of an easement to qualify.
(iv) the need for the right to accommodate the dominant tenement will be more difficult to satisfy. A right of way nearly always satisfies this requirement but the same is not true of a recreational right. In this case the involvement of timesharers was crucially important. Such a right may not accommodate dominant tenements with a different character.
(v) the right was a single right rather than a collection of rights and enabled all facilities comprised within the leisure complex to be enjoyed even those such as the restaurant which would not qualify as an easement if subject to a distinct and independent right.
(vi) the right covered future additions, substitutions and changes to the leisure complex and did not as a result fall foul of the perpetuity rule notwithstanding that the right included no words of futurity.
(vii) the right to use facilities such as the swimming pool and the golf course qualified as an easement notwithstanding the degree of maintenance and management needed to keep them running.
(viii) those entitled to the benefit of the right could step in if the owner of the leisure complex did not keep up the maintenance of a facility but only to the extent reasonably needed to keeping the facility running.
(ix) On the facts of this case it had been found below that the exercise of the step in right did not oust the owner of the leisure complex from enjoyment and control so the right was not disqualified from being an easement. The majority in the Supreme Court held that in determining whether there had been such ouster the exercise of the step-in right was disregarded and it was determined by reference to the expectations at the date of the grant of the manner in which the right would be exercised.
(x) not all recreational rights will be capable of qualifying as an easement as a result of this decision. The majority considered that some recreation rights still could not qualify if the recreational facilities depend upon active and continuous management and operation by the servient owner. Examples given by Lord Briggs were free rides on a miniature steam railway, a covered ski slope with artificial snow, or adventure rides in a theme park.
(xi) All the Law Lords were unanimous on one point. It had been a mistake to confer rights on the time sharers in this manner. There were timeshare units on the land which included the leisure complex and the rights of those timesharers had been conferred by landlord’s covenants in leases. All agreed that this was the appropriate method of protection.