A new easement
Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd  EWHC 3564
This case involved alleged ‘easements’ enjoyed by the owners of Regency Villas, a time share resort, over the Broome Park Estate. The time share website states:
The Regency Villas complex comprises of 26 delightful holiday homes set in their private grounds, within the surrounds of the beautiful old Broome Park country estate…
Golf is available to all owners on the 18-hole championship standard golf course…
The recreational facilities available to owners and visitors during their stay include: indoor swimming pool, sauna, squash, tennis, leisure suite, croquet table, putting green and snooker.
In the case, it was claimed that these rights could not amount to easements and so were not binding upon the owners of the Estate.
The law on what can amount to an easement was set out by the Court of Appeal in Re Ellenborough Park  Ch 131. It has four essential characteristics:
1. There must be both a dominant and a servient tenement;
2. The right must accommodate the dominant tenement;
3. The dominant and servient owners to be different persons;
4. The right must be capable of forming the subject matter of a grant.
The problem in this case was whether the rights claimed ‘accommodated’ the dominant tenement and whether they were capable of forming the subject matter of a grant.
HH Judge Purle QC stated:
41. I have no doubt that the rights in question accommodate the timeshare land in the sense that the enjoyment of that land … is enhanced…The extensive facilities are very obviously a major attraction of the timeshare units …
43. As to the requirement that the right must be capable of forming the subject matter of a grant, Ellenborough Park … identified the following questions which may also be relevant in this case:
(i) whether the rights are expressed in language which is too wide and vague;
(ii) whether such rights would amount to rights of joint occupation or substantially deprive the park owners of proprietorship or legal possession;
(iii) whether such rights would constitute mere rights of recreation, possessing no quality of utility or benefit.
44. There is nothing vague or of excessive width in the present rights. They clearly extend to all recreational and sporting facilities on the estate…
50. …The Defendants are in possession and control of all the facilities on site. They regulate the use of those facilities and run the estate as a commercial business open to the public as well as to timeshare owners. They have in no sense been ousted and their ability to exercise ownership rights and to remain in possession remains….
Finally, he considered whether the rights failed as easements as they amounted to ‘mere rights of recreation’.
54. Ellenborough Park is authority for the proposition that an easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist in law,… It is a relatively small step to extend that to the enjoyment of sporting and other recreational facilities….
56. There is no English authority determining whether or not an easement can exist to use a golf course, swimming pool or tennis court, but in my judgment there is no legal impediment to the grant of such an easement…
The judge then went on to consider Canadian and Australian decisions which, relying on Re Ellenborough Park, had held that such rights could amount to easements and following these held that the rights in this case were easements and thus binding upon the servient owners.
So, another new easement recognised by the courts. A very important decision for those owning and advising on time share developments that shows that use of leisure facilities can amount to binding property rights and are not just personal contractual rights. The case also shows that property law can change to meet the needs of modern society.