Easements: what are they?

Posted by Liz Brady


As you are probably aware, easements are rights to cross or otherwise use someone else’s land for a specified purpose but this is a good question at the moment.

A recent court case known as the Regency Villas case (Regency Villas Title Limited v Diamond Resorts (Europe) Limited [2017] EWCA (iv238) expanded the types of right capable of being an easement.

It has been long established that essentially an easement is:

  1. a right enjoyed by one piece of land over another;
  2. the owners of the two pieces of land are different; and
  3. the right must be something which is ‘capable of being an easement’.

It is the third requirement here (i.e. the right must be something which is ‘capable of being an easement’) which was tested in this case.

The dispute in the case centred on whether a timeshare owner at Broome Park in Kent had recreational rights to use an outdoor swimming pool, an 18 hole golf course, putting green, croquet lawn, tennis courts, squash courts and gardens and other sporting facilities which could be regarded as ‘easements’.  Prior to this case, it had been established that “rights of mere recreation and amusement” were not easements (pursuant to a case: Re. Ellenborough Park [1956] Ch131).  The significance of being an easement as opposed to being a mere personal right is that the rights benefit the succeeding owners of the land concerned (and not just the person who was owner at the time the right was created).

The owner of Broome Park estate, made a number of arguments trying to establish that these rights were not ‘easements’ and in particular contended that these rights were merely personal rights to the original parties to a legal transfer of the timeshare property. The High Court disagreed with this view and decided that the rights to use the outside communal facilities on Broome Park estate are easements. Before the Regency Villas case, these rights would have been regarded as recreational rights between the two parties and not an ‘easement’ which benefits the land and future owners of the land (in this case a timeshare owner at Broome Park estate).

It should be noted that the case distinguished between inside and outside rights. The rights to use the billiard room, television room, restaurant, bar, gym, all of which are indoors, are not easements as unlike the outside facilities, as they are not rights over “land” (see point 1 above).  Without the services and equipment provided by the owner of Broome Park estate to create these indoor facilities, there is nothing for the timeshare owners to use, unless they take possession of the common parts inside the building, which is not possible and was not contemplated under the original rights granted.  These indoor rights are merely contractual personal rights.

Whilst this High Court decision extends the range of things capable of being easements by now including as easements rights to use these outdoor facilities, it will impose expensive on-going maintenance costs on the freehold estate landowner of any such facilities which are easements.  An easement to use an outdoor swimming pool, for example, inevitably places an obligation on the swimming pool owner to keep the pool capable of being used as a swimming pool and, likewise, keep a golf course in a condition capable of being used as a golf course.

After this case, there seems to be a distinction between recreational rights indoors and those outdoors.  The latter are now likely to constitute easements and will cause expense for the freehold estate landowners in the future and possible difficulties with any redevelopment plans they may have for any outside communal areas (as they would have to accommodate the rights of the beneficiaries of any such existing easements).

For further advice about easements contact Commercial Property specialist, Liz Brady, on 01227 763939.


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