156: Easement to use a golf course, swimming pool and leisure facilities can exist

The Supreme Court has upheld previous decisions that an easement can exist to use a golf course, swimming pool and leisure facilities. The grant of recreational rights over land can be the subject matter of an easement provided they satisfy the conditions for easements, which are:

• there must be ‘dominant land’ (which enjoys the benefit of the easement) and ‘servient land’ (over which the easement is exercised);
• the right must accommodate the dominant land;
• the dominant and servient land must be owned by different persons; and
• the right must be capable of forming the subject matter of a grant.

Facts 

Regency Villas was the freehold owner of various timeshare units which had the benefit of rights to use leisure facilities at Broome Park Mansion House. The timeshare units were the ‘dominant land’. Each individual timeshare owner had the exclusive right to occupy a particular unit at specified periods each year and Regency Villas held the land on trust for the timeshare owners.

Broome Park Mansion House was an estate owned by Diamond Resorts and was the ‘servient land’ adjacent to the timeshare land. The leisure facilities on the estate included a tennis court, swimming pool, gardens, golf course and squash courts, which were also open to members of the paying public.

The timeshare land had been transferred to Regency Villas in 1981 and the transfer granted rights for:

‘the Transferee its successors in title its lessees 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 of Broome Park Mansion House, gardens and any other sporting or recreational facilities…. on the Transferor’s adjoining estate.’

In about 2000, the outdoor heated swimming pool that had existed at the time of the 1981 transfer was filled in and replaced by an indoor swimming pool in the basement of the mansion house. The timeshare units were not required to pay any costs for use of the leisure facilities. Diamond Resorts disputed that use of the estate facilities was capable of taking effect as a right benefitting another piece of land.

Decisions

The High Court found that the right to use the facilities did take effect as easements benefitting the timeshare owner’s land. The fact that the rights were for recreation did not stop the grant of an easement of this nature, provided the intention to grant an easement was evident on the construction of the easement wording.

The estate owners appealed.

The Court of Appeal allowed the appeal to a limited extent, finding that the High Court had construed the grant too widely. The court should have considered the validity of each of the purported easements individually, rather than treating them as a bundle. However they still agreed that the limited easement granted rights for the timeshare owners to use the leisure facilities. The estate owners appealed again.

A majority of the Supreme Court dismissed the appeal – holding that the owners of timeshare properties had the benefit of valid easements to use sporting and leisure facilities. The question in every such case is whether the particular recreational or sporting rights granted accommodate the dominant land.

The Supreme Court accepted that the grant of an easement in this case was novel, given the running costs and operational responsibilities of the estate in looking after the estate facilities. However, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land could be the subject matter of an easement, as they satisfied the four well-settled conditions for easements set out above.

It confirmed that the intention had been to grant a right in the form of an easement and that the grant was of a single comprehensive right to use a complex of facilities as they evolved, not fixed as they were in 1981.

Conclusion

The decision by the majority of the Supreme Court has extended the current law to create a new type of easement. However, Lord Carnwath (dissenting) confirmed that an easement is a right to do something, or to prevent something, on another’s land—not to have something done. He argued that previous legal authorities did not support the proposition that the types of rights claimed could be easements and that leisure facilities could not be a simple property right.

The court recognised that use of this type of easement was not one to be recommended, particularly as leisure facilities were being used free of charge without provision for maintenance.