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As the pursuit of recreational and leisure activities becomes a significant part of our use and enjoyment of property, the signs are that the law of easements is trying to keep pace, evolving and adapting to comprehend and protect new and emerging rights.
Easements, being “non-personal rights exercised over land in separate ownership”, come into being and are transmitted through grant, prescription or through custom or by virtue of the operation s.62 Law of Property Act 1925. For a right to crystallize as an easement there needs to be present the four characteristics identified in In re Ellenborough Park  Ch 131; that is, (i) separate ownership of (ii) a servient and dominant property (iii) the former accommodating the latter in respect of (iv) a right that is capable of being granted. No easements can arise if the right relied on is purely personal or the servient owner is obliged to carry out works (other than what that owner might reasonably wish to do) to maintain or develop the facilities that are the subject of the rights. The servient owner can and is entitled to remain passive in relation to the easement.
The decision in Regency Villas Title Ltd & Others v Diamonds Resorts (Europe) Ltd & Others  UKSC 57 makes clear that the incidence of relevant rights is not closed, and therefore the law of easements is still capable of development, flux and change to recognise and uphold these rights.
Regency Villas dealt with a not-dissimilar question to that which arose in Ellenborough Park, whether a grant of rights that were typically or purely recreational or sporting in nature could satisfy the essential and necessary conditions to establish an easement. Relying on grants said to amount to easements, set out in a 1981 Facilities Grant, the claimant owners of timeshares successfully claimed declaratory relief as to their entitlement to free access to and use of various recreational amenities situated on land owned by the freehold defendants and/or their lessees. The facilities and activities benefitting the timeshare owners were extensive (but were unquestionably sporting or recreational) and included the use of an outdoor heated swimming pool, golf course, squash courts, putting green, gymnasium, an ice rink and other leisure activities such as gardens and a television room. The defendants counterclaiming for the costs of certain facilities, contended in part, that the asserted rights, such as they were, were incapable of being easements. Upholding the decision of the lower court, the Court of Appeal underscored the point of principle that the grant of recreational and sporting rights could give rise to such easements.
That was the substantive matter that came before the Supreme Court which principally concerned itself with considering whether the second and fourth easement conditions had been satisfied. On the second condition, the Court was invited by the defendants to pivot the requirement so that the timeshare units were viewed as a utility for the recreational and sports facilities by which device it would be plain the conditions was unmet. Lord Briggs (delivering the majority judgment) rejected the argument as it was clear that “Provid[ed] that the rights are for the benefit or utility of the dominant tenement as such, it matters not that their enjoyment may be a primary reason why persons are attracted to acquire rights (such as timeshare units) in the dominant tenement”.
As is known, the fourth condition is a mix of several sub-elements brought together seemingly merely for convenience. An easement subsists if it is more than transient, is not susceptible to whimsical derogation and is clearly definable. An easement does not arise where the servient owner is, in effect, ousted by being deprived of the reasonable beneficial use of the servient land. There being no maintenance obligation on the servient landowner, the potential exercise of step-in rights by the dominant gives rise to questions about ouster. Whilst it is clear that a servient owner is entitled to deal with the easement with no “…more than sufferance”, in Regency Villas Lord Briggs categorically rejected the defendant’s argument about potential ouster, not just on the facts, but because it was “wrong in principle to test the issue of whether a grant of rights amount to an ouster of the servient owner by reference to what the dominant owner may do by way of step-in rights if the servient owner ceases to carry out the necessary management and maintenance of the servient tenement”. In any case, it must also be recognised that a bundle of granted rights do not unravel just because the parties have a common expectation (as in the Regency Villas) that the servient owner is to undertake remedial and maintenance work.
Lord Briggs’ central focus, however, was on the apparently novel issues that were thrown-up because the relevant rights in issue were precisely and specifically recreational and sporting rights derived from the respondent’s timeshare agreements. Timeshare schemes (which clearly did not involve conventional homes nor even town houses) were acknowledged by Lord Briggs, as “…a relatively recent concept”. The reality was that such timeshare units, although typically used for holidays, were in fact designed to cater for recreational and sporting activities and “… it was beyond a doubt that that such leisure developments with all its recreational and sporting facilities is of service and utility and benefit to timeshare apartments as such although for different reasons over a communal garden is of service and utility for the town house.”
Any lingering doubts that rights to leisure, recreational or sporting activities were indeed, capable of amounting to an easement have been dismissed because “…The advantages to be gained from recreational and sporting activities are now so universally regarded as being of real utility and benefit to human beings that the pejorative expression “mere right of recreation and amusement, possessing no quality of utility or benefit has become a contradiction in terms.”
Lord Briggs recognised that there were historical arguments for and against the extension of the law to give recognition to a new species of easement. However, there were new “types of property ownership” (illustrated, for example, by the Facilities Grant) that inevitably led to or resulted in new ways of enjoying the use of land. The common law must therefore be flexible and malleable to accommodate the rights that were being created. “Recreational easements” were one such developing category. Their recognition would be consistent with the line of cases that culminated in Ellenborough Park and with like developments in other common law jurisdictions. In a forthright conclusion Lord Briggs affirmed the principled decision in Ellenborough Park and expressed the view that “…the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement…”. The judgment seemingly goes further by treating the fourth condition (capability to be an easement) as being met where “the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments.”
There will be some that doubt whether Regency Villas broken new legal ground; but as Lord Briggs put it “the facilities granted … undoubtedly broke new ground within the context of easements, beyond that established in Ellenborough Park”. At the very least, if there was a presumption that leisure and sporting activities could not give rise to an easement, that surely must now be gone. Owners of timeshare units with leisure, recreational and sporting rights over adjoining properties would no-doubt have been gratified for the forthright recognition and protection of those rights. Developers of schemes wishing to provide recreational and sporting facilities should, however, be mindful that attempting to avoid the consequences of “recreational easements” (which may come into existence by implied as well as express grant), can ultimately prove time-consuming, complicated and expensive.