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Teeing Off: Opening the Door to Easements for Sporting Facilities

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About The Author

Mark O'Neill (Regular Writer)

Mark is a graduate of the Open University, where he recently graduated with a First Class Honours in his BSc (Hons) Open Degree. Mark is currently working full time for the Financial Ombudsman Service as an Adjudicator, while also undertaking an LLM in Sports Law in Practice at De Montford University with the aim of working as a solicitor specialising in sports law.

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Sports can be a diversion. Sports can be a hobby. And, for a fortunate few, sports can change the world.

Nelson Mandela

There are few better things in life than getting away from the daily grind to unwind. Instead of booking into a hotel and having to compete for a sunbed and other facilities, many choose to take advantage of timeshares. This sees several joint owners of a property having the right to its use as a holiday home under a time-sharing scheme.

Though the greater privacy and freedom this offers has made the industry relatively popular – the Timeshare Consumer Guide 2017 valued it at around $14 billion worldwide – timeshares have nonetheless been the subject of repeated controversy. For example, as the Daily Express reported in July 2017, several holidaymakers have fallen victim to scams orchestrated by fraudsters.

Meanwhile, in a case decided by the Court of Appeal last summer, a group of timeshare owners faced a very different legal problem. In Regency Villas v Diamond Resorts [2017], the issue at hand was whether rights of use and access to sporting facilities held by timeshare owners at a luxury golf holiday resort could be recognised as easements within a modern context.

As this article examines, though the case resulted in a simple extension of the formula for easements, this case represented an important judicial acceptance of the significance of sport in modern society.

What is an Easement?

In simple terms, an easement is a right a person has to use land that they do not own in a certain way. A right of way of is an example of this. Easements may also be used negatively to prevent the owner of that land from using it in a certain way: for example, a person with an easement may employ their right of light to prevent another from building an extension that obstruct it.  

Easements are typically created upon the sale of land. However, they can also arise in a number of other, less explicit ways that can trigger disputes as to their existence. Thus, in the seminal case of Re Ellenborough Park [1955], Lord Evershed MR set out the four criteria which must be fulfilled for a right to constitute an easement:

  • There must be dominant land that has the benefit of the right, and servient land that is subject to, or is burdened by, the right;
  • The right in question should accommodate the dominant land;
  • The owners of the two different area of land must be separate persons;
  • The right must be capable of forming the subject matter of a grant.

Regency Villas v Diamond Resorts

The Facts

In Regency Villas v Diamond Resorts [2017], a group of owners who all possessed holiday villas as part of a timeshare arrangement claimed that their rights to access and use leisure facilities at the neighbouring property – a luxury golf holiday resort called Broome Park – should be recognised as easements. These rights of use and access were set out in the documents recording the transfer of the land upon which the holiday villas had been built, to which the owners of Broome Park had been a party.

Although the transfer itself had since been lost, the Land Registry had recorded the relevant rights as comprising the ability:

[F]or 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… and any other sporting or recreational facilities… on the transferor’s adjoining estate.

The Legal Context

It was the final criterion from Re Ellenborough Park [1955] that was most significant, and the primary point of discussion, in Regency Villas v Diamond Resorts [2017]. Indeed, the Court of Appeal were tasked with examining its circular construction that had long been a point of debate; it has long been observed that when asking whether a right is capable of forming the subject matter of a grant, the ultimate question this poses is whether a certain type of right – the right in issue – can be recognised as an easement. Indeed, as is evident from a number of authorities in this area, the courts have been forced to rely on preceding case law when trying to pinpoint exactly what is capable of forming the subject matter of a grant.

As Jett Parker-Holland has discussed in relation to gross negligence manslaughter for Keep Calm Talk Law, circularity in law is often the subject of widespread academic debate in certain circumstances. However, in this context, it is arguable that the approach is actually sensible, because it allows for an element of consistency in their decision-making without preventing incremental development.

Indeed, the apparent circularity of the formula does not preclude – in fact, it creates room for – gradualist legal reform. This would explain why – despite the courts of the 19th Century in cases such as Mounsey v Ismay [1865] considering access to sport and recreation unsuitable for forming the basis of easements – the right to walk about a park was found in Re Ellenborough Park [1955] to be capable of forming an easement. Because of the capacity for incremental reform, this development was able to occur without causing dramatic changes to the doctrine of easements.

Indeed, for the claimants in Regency Villas v Diamond Resorts [2017], this was a welcome state of affairs: though it seems likely – as Sir Geoffrey Vos in Regency Villas v Diamond Resorts [2017] and Lord Neuberger and Lord Scott in Moncrieff v Jamieson [2007] had suggested – that at the time Re Ellenborough Park [1955] was decided, the judiciary would have refused to find the specific sporting and leisure rights at issue in Regency Villas v Diamond Resorts [2017] to be capable of forming an easement, there was nothing specific or explicit in the legal formulation that definitely blocked the Court of Appeal from doing so.

Nonetheless, there are further specific rules to which the Court of Appeal needed to have regarded when deciding whether a right is of the sort which is capable of forming the subject matter of the grant. As HHJ Purle QC noted in the High Court decision in Regency Villas v Diamond Resorts [2015], cases such as Copeland v Greenhalf [1952] Ch 488 require the claimed right to not:

  • Be so vague that it renders enforcement of the easement impossible
  • Impose positive obligations on the owner of the servient land;
  • Substantially deprive the owner of the servient from the ability to enjoy it.

The Decision

In Regency Villas v Diamond Resorts [2017], the Court of Appeal did not accept that all of the different rights constituted easements. Firstly, it considered the claimants claimed right of use and access to the squash and tennis courts – as well as a putting green and a croquet lawn that had been added to Broome Park since the transfer had been recorded by the Land Registry – did satisfy all requirements evident from the case law quite easily and therefore constituted easements. It noted that, although some of these facilities would necessarily involve some cost for maintenance or use, it held that it was not necessary for the servient owner to meet those costs in order to continue enjoying such rights. These facilities might be maintained by the dominant owner, or fall into disrepair.

However, the Court of Appeal in Regency Villas v Diamond Resorts [2017] was more hesitant to accept that the right to use the golf course and the swimming pool could constitute an easement, on the grounds that it imposed positive obligations upon the owners of Broome Park. Indeed, after noting Lord Scott’s concern in Moncrieff v Jamieson [2007] about a swimming pool forming the basis for an easement, Sir Geoffrey Vos explained:

We are all familiar with the teams of groundsmen and greenkeepers that such courses need to employ to maintain them to the high standard that players frequently desire.

Nonetheless, the Court of Appeal in Regency Villas v Diamond Resorts [2017] concluded that the right to use and access the swimming pool and golf course could constitute easements. Applying the same logic as it had to the squash and tennis courts, it noted that it would still be possible for those facilities to be used even if the servient owner refused to continue their maintenance.

However, the Court of Appeal refused to allow the right to use and access the ground and basement floor of Broome Park – in which the owners of Broome Park had built a billiard room, TV room, restaurant, bar, gymnasium, sunbed and sauna – to be considered easements. This decision was rooted in the fact that these facilities relied on the existence of chattels to make them what they are which the servient owned would need to provide. As Sir Geoffrey Vos noted:

Unlike the empty swimming pool, an empty billiard room is not a billiard room at all.

Comment – Enter the Sporting World

The most captivating and important aspect of the Court of Appeal’s decision in Regency Villas v Diamond Resorts [2017] stemmed from Sir Geoffrey Vos’ acceptance that what constitutes an acceptable category of easement ‘must alter and expand with the changes that take place in the circumstances of mankind’ and how this interacted with the changing position of sport in society.

In this respect, the decision in Regency Villas v Diamond Resorts [2017] is an example of the magic effect of legal construction that courts often use when they are reluctant to overrule decision on fundamental points of law. Indeed, when faced with decisions which may overrule certain fundamental cases, the judiciary will look for ways to ‘go around’ the decision without explicitly overruling it. Another example of such an approach can be seen when the Court of Appeal, constrained by the precedent set by the House of Lords in Foakes v Beer [1884] on the common law on part payment of debts, made its decision in Re Selectmove [1993].

Thus, while refusing to overrule a number of cases that suggested the contrary and thereby maintaining the the thread running through all jurisprudence underpinning easements, the Court of Appeal in Regency Villas v Diamond Resorts [2017] were able to has accommodated a more generous view on sporting facilities due to the social utility of encouraging sporting and recreational activity. Certainly, Sir Geoffrey Vos’ description of how the position and role in sport in society was emphatic:

Physical exercise is now regarded by 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... We cannot see how an easement could 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.

Whether this decision is truly revolutionary, however, is questionable: instead, it can be argued that it represents a culmination of the judiciary’s increasing acceptance of the social importance and utility of sport has grown over the past century. Indeed, sport has been given greater credence by judges in a range of areas, not just in land law. For example, in Bolton v Stone [1951] AC 850– a negligence case involving balls being hit out of a village cricket ground that struck a bystander – the House of Lords believed there were policy implications regarding the message of what liability would have meant in creating restrictions in what we can do in our everyday lives in an urbanised modern society.

Famously too, Lord Denning MR in Miller v Jackson [1977] cited the social utility of sporting activity in his dissent when discussing whether to overturn a High Court injunction preventing a village cricket in County Durham from playing at their home ground due to cricket balls flying into the neighbouring residential properties, which was found to be an actionable nuisance.

Conclusion

The impact of the Court of Appeal’s decision in Regency Villas v Diamond Resorts [2017] is likely to be more significant outside the fact pattern to which it applies, namely the development of leisure facilities. Practically, it may well be that whether easements of utility are constructed broadly or narrowly may not make a great difference to the realities of managing a valuable and complicated estate. Indeed, the outcome seems to be anything but a ‘win-win’ situation: if the servient owner struggles to manage his tenement, the dominant owner will also surely lose out in the end as there will be no enforceable rights to enjoy, and a business cannot be made to operate purely to allow easement rights to be enjoyed.

In this respect, social and economic interests might be better served by a resurgence of interest in the idea that easements should involve some ‘quid-pro-quo’ and common sense negotiations rather than reliance on technical legal construction.

However, the decision’s expansion of the categories of rights which may fall under the formula from Re Ellenborough Park [1955] could be significant. Alongside its obvious potential to impact upon the public’s access to sporting facilities, the decision may herald similar expansions based on reasoning underpinned by changing public attitudes and conceptions of social utility.

Indeed, there is a growing body of literature supporting the use of easements as a useful mechanism for environmental conservation, which may become increasingly important as recognition of the need to protect the environment faces off against the search for suitable areas for housing development. Whilst the law at present may not allow for property rights to emerge here, Regency Villas v Diamond Resorts [2017] shows the potential for the law to incrementally develop to encompass this in the future.

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Tagged: Environmental Law, Land Law, Property Law, Sport Law

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