Timeshare owners of Elham House in Canterbury will celebrate a recent High Court decision confirming that you can grant a binding property right (easement) to use facilities such as a golf course, swimming pool or tennis court. Until this decision, it was unclear whether use of leisure facilities could exist as an easement as stringent conditions limit the kinds of rights which can constitute an easement and the circumstances in which a valid easement can be created.
Regency Villas owned land which housed a number of timeshare properties. Diamond Resorts owned the neighbouring land. Both pieces of land had been in common ownership until November 1981 when part was sold to Regency’s predecessor with “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…tennis courts…and any other sporting or recreational facilities” on the remaining land (owned by Diamond).
Regency argued that the right to use the leisure facilities on Diamond’s land constituted an easement. Diamond argued that the right was a personal right for the parties to the 1981 transfer only. As a personal right, it would not benefit or bind future owners.
The focus of the Court’s attention was on whether the right was capable of being the subject-matter of an easement. The Court considered that rights of recreation can take effect as easements as long as they benefit the land, are not too wide and vague, do not amount to rights of joint occupation and do not deprive the neighbour of legal ownership or possession.
This case serves as a useful reminder that what constitutes an easement is open to expansion, provided it complies with the characteristics set out in the 1956 case of re Ellenborough Park.
Case: Regency Villas Title Limited & others v Diamond Resorts (Europe) Limited & another