What is the correct approach to recreational easements?

The Supreme Court of the United Kingdom has announced today (8 November 2018) that it is to hand down its judgment in Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd on 14 November 2018. The case concerns the correct approach to the requirement that an easement must accommodate the dominant tenement, particularly where the right claimed as an easement is the right to use the servient land in a self-contained way for the purposes of recreation.

Ahead of the Supreme Court’s decision, this blog post considers the decision in the Court of Appeal, and offers some thoughts as to how the Supreme Court might determine the key issues. This post is adapted from a case note that I published in the Conveyancer and Property Lawyer Journal in 2017, which can be found in hard copy and online at [2017] 4 Conv 312.

Essential facts  

The first claimant was the freehold owner of Elham House in the Broome Park Estate. In the grounds of Elham House there are 24 timeshare villas. The second to fifth claimants represented the timeshare owners. The defendants were the freehold and leasehold owners of the Broome Park Estate (the ‘Estate’).

A dispute arose out of the terms of a transfer in 1981 by which the defendants granted rights to the claimants to make use of facilities located on the Estate:

“…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”

HH Judge Purle QC, sitting in the High Court of Justice Chancery Division, took the view that the rights contained in the grant met the characteristics of an easement as set out in Re Ellenborough Park [1956] Ch 131. The judge held that the rights in question amounted to more than a ‘mere’ right of recreation unconnected with the dominant land, given that the use of the extensive facilities would have been a major attraction of the timeshare villas, as well as for the occupiers of Elham House.

The defendants appealed on the basis that:

1. The rights granted could not amount to an easement because the facilities could only be maintained at considerable expense;
2. The rights extended to facilities which were not completed at the time of the 1981 transfer;
3. The rights comprised at best a bundle of rights and easements that the judge failed to unpack.

 Court of Appeal

 The Court of Appeal ([2017] EWCA Civ 238) held that the absence of a positive maintenance obligation did not preclude the existence of an easement, nor would an easement lapse if the facilities were not in fact maintained, and that, in any event, the claimants would be at liberty to enter the servient tenement to undertake any maintenance or repair works. The nature of the works that the claimants would be required to undertake could prevent the right claimed being an easement if those activities became so extensive that they amounted to possession or occupation by the claimants, but this would be a question of fact and degree.

 It was also held that HH Judge Purle QC had construed the grant too widely in holding that it extended to all recreational facilities on the Estate, including those that were neither there nor planned at the time of the grant, and to those facilities that had been significantly improved since the grant was made. Rather, the grant should be construed as only extending to the use of the sporting and recreational facilities that existed at the date of the 1981 transfer, together with any new, improved or replacement facilities of the same kind, on the same areas of land, subject only to minor extensions. Accordingly, the easement was not a “free-ranging easement or an easement at will” and could not expand to cover the use of sports and recreational facilities not contemplated in 1981.

Furthermore, the Court reviewed the authorities that concerned the grant of easements for the purposes of recreation and concluded that the crucial requirement of an easement is that the right must be a “right of utility and benefit” to the dominant tenement. Furthermore, a right should not be downgraded to the status of mere recreation or amusement simply because the form of physical exercise that it envisaged was a game or a sport. Modern society has moved on since Re Ellenborough Park, and the law should account for the changing views on what amounts to a mere recreation or amusement, and what constitutes a right of utility and benefit.

Consequently, the Court held that the right to use the Italianate gardens, hard-surfaced tennis courts, squash courts, putting green and croquet lawn, outdoor pool and golf course all amounted to easements. On the other hand, the use of the reception, billiard room and TV room on the ground floor of the Mansion House, as well as the restaurant, bar, gym, sunbed and sauna area in the basement of the Mansion House did not amount to an easement. Furthermore, as the new swimming pool built in 2005 was located in the basement of the Mansion House, over which there was held to be no easement, there was no easement to use that pool.

The Court’s view was that the use of the facilities within the Mansion House did not amount to an easement because they did not meet the definition of sporting or recreational facilities existing at the time of the 1981 transfer. Recreational indoor games such as snooker would only amount to ‘mere’ recreation and amusement, and did not have the same inherent utility and benefit to the dominant tenement as the provision of the other sporting facilities on the Estate. Furthermore, the Court held that the grant of the right to use the indoor facilities, in most instances, amounted to nothing more than a personal right to use chattels and services provided by the defendants.

 Reflections

 Distinguishing Re Ellenborough Park

 The Court was right to observe that the Re Ellenborough Park test for establishing easements is over 60 years old. The expectations of the population in England and Wales have changed radically over that time, and Regency Villas should be considered in light of those changes. The Court approached the issues in the case with the view that, whilst easements in the modern world must retain their essential legal qualities, there should be an appreciation that physical exercise may take many forms and is regarded as an essential or at least desirable part of modern daily routines.

However, there is a distinguishing, and often forgotten, element in Re Ellenborough Park that should also have been considered by the Vos LJ: the presence of covenants restricting the servient owners’ use of the land. In Re Ellenborough Park, the original servient owners covenanted with the dominant owners on behalf of themselves and their successors in title to maintain the plot as an ornamental garden or pleasure ground, and to not at any time “erect or permit to be erected any dwelling-house and other building” on any part of the pleasure ground.

The presence of the covenants in Re Ellenborough Park give that decision an added dimension, which is not present in Regency Villas. Whilst the covenant to maintain the land as an ornamental pleasure ground was a positive covenant that would not bind successors in title, the covenant not to build on the land would bind all future owners, and ensured that the land would remain undeveloped. Therefore, it could be argued that it was not a huge step for Evershed MR to find that there was an easement in favour of the surrounding properties for the purposes of recreation; the land remained available for the purposes of recreation because its open and undeveloped character is preserved by the covenant. It is of course accepted that there is a huge difference in the substance of a right that grants a third party access and use of land for the purposes of recreation (an easement), and a right that prevents the landowner from using their land in a certain way (a covenant). However, the effects of these rights were not so far apart in Re Ellenborough Park as to be wholly unrelated.

In contrast, there were no covenants in Regency Villas preserving the state of the land. Therefore, the decision in Regency Villas extends the scope of Re Ellenborough Park not just in the sense that it is interpreting the law of easements in accordance with contemporary expectations, but also in that it is recognising easements for the purposes of recreation independent of covenants that secure the recreational character and suitability of the of the land. It is a much bigger step for Vos LJ to recognise valid easements in Regency Villas than it was for Evershed MR in Re Ellenborough Park, and the question to be posed is whetherRegency Villas could, and should, have been distinguished from Re Ellenborough Park on this basis.

 The ground floor and basement of the Mansion House

The Court of Appeal held that the use of the facilities on the ground floor and basement of the Mansion House did not amount to an easement. The justification for this finding was that, as an easement is concerned with the use of land, there could be no easement solely for the use of chattels, facilities and services that happen to be on the land. However, it seems odd that Vos LJ took against the right to use the indoor space being an easement with such vigour. At its core, the indoor space is no different to some of the other facilities over which an easement was held to exist.

Consider, for example, the tennis courts. The 1981 grant conferred the right to “use” the tennis courts, not the right to play tennis per se. Whilst it is assumed that the grantee would play tennis on the courts, the grant does not state that the tennis court must be used to play tennis, and there are a number of other reasonable and foreseeable uses of a hard standing area. The easement is concerned with the right to use the space, whereas the actual activity that is engaged in upon that space will be dictated by the whim of the user.  The same reasoning is true of the indoor facilities; the literal wording of the grant should mean that there is no objection to the “use” of the ground floor and basement of the Manor House being the subject matter of an easement. The actual activity that constitutes that use will be determined according to the facilities actually found on the land from time to time (whether a gym, sauna or sunbed etc), or the whim of the user, but this is in no way different to the tennis court. The defendants would be able to alter the facilities, such as by removing the gym equipment, and the easement would endure, as it is the ‘in principle’ right to use the land that is the subject matter of the easement. Similarly, the defendants could remove the tennis nets and tramlines, and replace them with something entirely different (such as basketball hoops), or indeed nothing at all; the easement to use the designated land area would endure, even if the activity that is typically engaged in upon it does not.

There is one possible question mark over such a wide interpretation of the grant in Regency Villas: jus spatiandi. A right to wander at large is not a right known to English Law. However, the view was taken in Re Ellenborough Park that two judicial statements from Farwell J were not an exhaustive and authoritative statement on the issue, especially in the light of conflicting case law. Therefore, even if the wider interpretation of the grant in Regency Villas suggested above does amount to a jus spatiandi, it is possible that the right could still be considered an easement. In any event, it is suggested that the wider interpretation of the Regency Villas grant does not amount to a jus spatiandi; the grant does not permit wandering at large across the Estate, but rather expressly states defined areas of the Estate over which rights may be exercised.

Furthermore, even if Vos LJ is right to read into the 1981 grant a requirement that the land should be used only for activities that are typical to its designation, there is still no difference between the tennis courts and the facilities found on the ground floor basement of the Mansion House: both are void of all utility without the use of chattels. The tennis court cannot be used as a tennis court without the use of nets, balls and racquets, in the same way that the gym cannot be used without the provision gym equipment. However, Vos LJ expressly states that there is no reason why the claimants cannot bring their own nets, balls and racquets to the tennis court, or even hire them from the defendants. The same must be true of the gym and other chattel-reliant facilities in the Mansion House; the claimants could bring their own gym equipment, TV or billiards set to use on the land, or pay for the privilege of using the chattels provided by the defendants whilst exercising their right to use the land.

Overall, it seems that Vos LJ is making a value judgment about indoor pursuits as compared to outdoor ones when considering the utility and benefit that the dominant tenement can derive from each. His Lordship interpreted the subject matter of the easement as a right to engage in physical exercise, which, in his view, is not fulfilled by the use of the various facilities in the Mansion House. It is respectfully suggested that to adopt such a position is to misread the 1981 grant. Whilst the grant provided for the use of “sporting or recreational facilities”, which the Court could interpret as not including the space in the Mansion House, the grant also made express provision for the use of the ground and basement floor of the Mansion House. Therefore, there was no need for the Court to consider whether the ground and basement floors met the definition of sporting or recreational facilities, or to distinguish between outdoor and indoor pursuits for the purposes of physical exercise, as the grant precluded the need for this level of inquiry.

Occupation and possession

 An easement must not amount to a right of joint occupation or substantially deprive the dominant owner of proprietorship or possession. To that end, of particular concern in Regency Villas was the question of whether, if the defendants ceased to operate their business and maintain the facilities, the claimants would need to take actual occupation or possession of the servient tenement in order to maintain the facilities and give effect to the easement. Indeed, the Court was of the view that if the claimants would need actual occupation or possession to conduct such maintenance, it was unlikely that the right claimed could be an easement in the first place.

On this issue there also appears to be an inconsistent approach in the application of principle to the outdoor and indoor facilities. The Court were satisfied that if the claimants were required to take on the maintenance of the tennis courts, the existing outdoor heated swimming pool and the golf course, they could do so without needing to take occupation or possession of the land (despite also acknowledging that the grounds men would probably need extensive access to the golf course in order to properly maintain it). However, maintenance of the facilities on the ground floor and in the basement of the Mansion House would require occupation or possession. This conclusion is less than convincing, and the reasoning very thin: the Court never explains why it is of the view that the outdoor facilities do not require occupation or possession by the claimants, or why the indoor ones do. One possibility for the Court’s finding is that, if it is accepted that the claimants must have access to chattels in order to give effect to an easement over the indoor facilities, bringing those chattels onto the land would amount to possession or occupation of the land. However, it is difficult to see how the claimants bringing chattels onto the land would meet the test for the ouster principle.

On the whole, the Court’s decision on the possession and occupation issue seems to be inherently linked to its view on the use of some areas of the servient tenement being reliant on the use of chattels. As a result, the treatment and consideration of the issue is thin and unsatisfactory, and the merits of the various arguments that could be made are never fully unpacked.

What will the Supreme Court do?

 The recognition of a 21^st century proprietary right to recreate could prove vital for those seeking to use recreational spaces, which are in increasingly short supply. It is government policy to pursue a programme of high-density house building, especially in urban areas, to make the most efficient use of land in meeting the current housing need (see the Department for Communities and Local Government, Fixing our Broken Housing Market (February 2017) at page 32). Maximising housing density in this way will likely be at the expense of the amenity space attached to each housing unit, and recreational easements could prove useful in mitigating the shortfall in private amenity space. Therefore, I hope that the Supreme Court shares my view that the right to use land for the purposes of recreation does deliver a utility and benefit to the dominant land, and that these rights can be easements.

Arguably, the Court of Appeal could have gone further in Regency Villas in light of the wording of the grant and recognised an even wider range of easements (such as those over the ground floor and basement of the Mansion House). I would support the Supreme Court taking a much wider view of the grant than Vos LJ in the Court of Appeal.