In December 2015, The High Court considered whether an easement can exist to use a golf course, swimming pool or tennis court.
What is an ‘easement’?
An easement is a non-possessory right to use and/or enter onto the real property of another without possessing it. It is “best typified in the right of way which one landowner, A, may enjoy over the land of another, B”.
The Courtheld that there is no legal impediment to the grant of an easement of this nature, provided the intention to grant an easement (as opposed to a merely personal right) is evident on the proper construction of the grant construed in the light of the material surrounding circumstances.
This case is a useful reminder that the class of possible easements is not closed and that any right having the characteristics set out in Re Ellenborough Park [1955] EWCA Civ 4 is capable of taking effect as an easement. This decision also provides a welcome authority, as there was previously no authority on this point.
A right must have all of the following characteristics to be an easement:
- 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.
- The right must be capable of forming the subject matter of a grant.
- When deciding whether a right satisfies the fourth limb, the following questions were identified in Re Ellenborough Parkfor consideration:
- 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 park owners of proprietorship or legal possession.
- Whether such rights would constitute mere rights of recreation, possessing no quality of utility or benefit.
Facts
The Company was the freehold owner of land and buildings (the timeshare land).
Timeshare units were built on the timeshare land and each owner had the exclusive right to occupy a particular unit at specified periods each year. The Company effectively held the land on trust for (ultimately) the timeshare owners.
The estate was adjacent to the timeshare land and was the servient tenement in respect of the claimed easements. There were sporting and leisure facilities on the estate such as a tennis court, swimming pool, gardens, golf course and squash courts. The recreational facilities were also open to members of the public, who paid to use them.
The timeshare land was transferred to the Company’s predecessor in title in 1981 (the 1981 Transfer). There was an entry in the property register of the timeshare land, that the land had the benefit of a set of rights. The first two sets of rights provided for rights of way and of services. The wording of the third set of rights was as follows:
“AND thirdly the right 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 (hereafter called “the facilities”) on the Transferor’s adjoining estate.”
The main issue, and the only one covered in this update, was whether these rights took effect as easements.
The owners of the estate argued that the rights to use the facilities were personal rights between the parties to the 1981 Transfer, incapable of running with the land so as to bind or benefit successors in title. The 1981 Transfer did not contain any charging provision in return for the facilities, so if the right to use them took effect as easements, they would be available free of charge.
Decision
The right to use the facilities took effect as easements.
The first, second and third characteristics set out in Re Ellenborough Park had been met. The key issue was whether the fourth characteristic, the requirement that the right must be capable of forming the subject matter of a grant, had been satisfied. In particular, whether the rights in question did not qualify as easements because they amounted to no more than mere rights of recreation.
In Re Ellenborough Park the use of a pleasure ground took effect as an easement. The court considered that it was a relatively small step to extend that to the enjoyment of sporting and other recreational facilities.
The court identified a number of Australian and Canadian authorities which had considered and applied Re Ellenborough Park to various sporting and recreational facilities. Against this line of authorities, the court considered the doubts expressed by Lord Scott, obiter dicta, in the Scottish case of Moncrieff v Jamieson [2007] UKHL 42, as to whether the grant of a right to use a neighbour’s swimming pool could be a servitude (the Scottish equivalent of an easement).
The court held that there is no legal impediment to the grant of an easement to use a golf course, swimming pool or tennis court, provided the intention to grant an easement (as opposed to a merely personal right) is evident on the proper construction of the grant construed in the light of the material surrounding circumstances.
As a matter of construction, there was no compelling reason to construe the rights in this case as personal. Unlike Moncrieff, this case did not concern neighbours in the purely domestic context, but a grant made by a developer for a number of timeshare owners who were able to act collectively through the unincorporated association set up to look after and represent their interests. Adapting Lord Scott’s example (see Background), they could provide their own water supply if they needed to fill the pool, if necessary from a tanker.
For more information regarding this article or assistance in any other timeshare related issues please contact the TCA on 01908 881058 or email: info@TimeshareConsumerAssociation.org.uk