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Anyone looking for a judicial discussion of the importance of sport in modern life might not immediately think of looking in a judgment on the law of easements. But that is what the Court of Appeal has given us in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2017] EWCA Civ 238, which concerns the grant of rights to use various sports and recreational facilities in a leisure complex.

An easement is the right of the owner of one piece of land (the “dominant” land) to make use of neighbouring land (the “servient” land) for the benefit of the dominant land. Examples include a right of way allowing me to cross my neighbour’s land to get to my house, a right to lay pipes or cables across my neighbour’s land, or a right to have my land supported by my neighbour’s land. Easements are not mere contracts between landowners – they are registrable property rights which “run with the land”, binding successive owners of the servient land, for the benefit of successive owners of the dominant land. Generations of law students have read the case of Re Ellenborough Park [1956] Ch 131 which sets out the essential characteristics of an easement. Easements must “accommodate” the dominant land, cannot be too wide and vague, cannot amount to rights of occupation and cannot impose positive obligations on the servient owner. Ellenborough Park itself decided that the right of owners of houses on the edge of a park to use it as a garden could constitute an easement.

The Regency Villas case concerned the Broome Park Estate, Barham, Canterbury, which was a substantial leisure complex. In 1981, the owner of the estate transferred a plot of land for the construction of 24 timeshare villas, with the benefit of the right “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 the light of Ellenborough Park, it was clear that the right to use the estate’s Italianate formal gardens was a valid easement, but the other rights went well beyond anything previously recognised as an easement in English law.

Given the nature of the rights in question, attention focused on a judgment from 1865 which had suggested that a right to hold horse races could not be an easement because the right granted had to be “a right of utility and benefit and not one of mere recreation and amusement”.

Giving the judgment of the Court of Appeal in Regency Villas, Sir Geoffrey Vos, the Chancellor of the High Court, noted that the categories of easements are not closed, but (as had been held in 1852) “must alter and expand with the changes that take place in the circumstances of mankind”. He said:

“… the views of society as to what is mere recreation or amusement may change… Physical exercise is now regarded by my most people in the United Kingdom as either an essential or at least a desirable part of their daily routines. It is not a mere recreation or amusement. Physical exercise can, moreover, in our modern lives, take many forms, whether it be walking, swimming or playing active games and sports. We cannot see how an easement could either in 1981 or in 2017 be ruled out solely on the grounds that the form of physical exercise it envisaged was a game or a sport rather than purely a walk in a garden… [A]n easement should not in the modern world be held to be invalid on the ground that it was "mere recreation or amusement" because the form of physical exercise it envisaged was a game or a sport.”

Going on to consider the particular rights in question, the Court had little difficulty upholding the rights to use the tennis courts, squash courts, putting green and croquet lawn as easements. If the servient owner went out of business, the dominant owners could bring their own tennis net, provide their own electricity to light the squash courts and mow the croquet lawn. All these could be used by the dominant owners subject to “any reasonable provisions made for their regulation in the ordinary course and the servient owner’s right to charge for the use of its chattels or services.

The rights to use the swimming pool and 18-hole golf course were more difficult, given the more complex nature of these facilities, and the doubts expressed by Lord Scott in a 2007 case as to whether a right to use a neighbour's swimming pool could qualify as an easement. The Court of Appeal, however, upheld both grants. If the servient owner stopped maintaining these facilities, the dominant owners could, if necessary, provide the necessary water or even filtration plant for the pool, and mow the grass and take any other necessary steps to make the golf course playable. The Court rejected the argument that “a championship golf course cannot really be made playable without, in effect, taking possession of it so as to allow the groundsmen to make a proper job of maintaining the necessary manicured appearance”.

On the other hand, the Court did not accept that the rights over the reception, billiard room, TV room, restaurant, bar, gym, sunbed and sauna could be easements, in part because they were “services and facilities that cannot exist without the chattels that make them what they are”: “Unlike the empty swimming pool, an empty billiard room is not a billiard room at all”, and the dominant owners could not maintain these facilities without taking possession of the land.

This distinction is readily comprehensible, although there may be interesting borderline cases (such as a right to use a fixed outdoor table tennis table, or an ice rink). Perhaps less easy to justify is the Chancellor’s other reason for treating these facilities differently: “what we have said about the modern approach to taking physical exercise is not really applicable to recreational indoor games such as snooker or to watching television”. While one can understand a distinction between croquet and snooker based on the way in which those activities use land, it is with respect far from obvious how such a distinction can be supported by reference to “the modern approach to taking physical exercise”. Croquet and bowls are hardly more energetic than snooker and darts. A right to use gym equipment is undoubtedly energetic but cannot be an easement, whereas a right to use an air rifle range ought to be an effective easement despite the lack of physical exertion involved.

This ruling will be of considerable interest to those involved in the development of leisure facilities. It may open up interesting possibilities for the creative development of communal sports facilities beyond its immediate “country club” context. More generally, the Court’s recognition of the importance of sport in modern life is to be welcomed.

Clerks

Staff