Owner of Broome Park Estate loses High Court fight over outdoor recreational rights

November 21, 2017

Ruling could prove costly for landowners, warns Furley Page

A High Court judgment in a dispute over recreational rights on a Kent estate could leave freehold landowners with significant future maintenance costs and obligations, says a property specialist at leading Kent law firm Furley Page.

Liz Brady said the dispute centred on whether a timeshare owner at the 268-acre Broome Park estate in Kent had ‘recreational’ rights to use the outdoor sports facilities at the site or whether the rights should be regarded as ‘easements’ – rights that would continue to benefit future owners even if the timeshare were sold on.

Easements are familiar to many property owners as the rights to cross or otherwise use someone else’s land for a specific purpose. The recent court case, known as the Regency Villas case, expanded the types of right capable of being an easement.

Broome Park Mansion House, near Canterbury, is a 17th Century Grade I listed building once owned by Lord Kitchener, surrounded by a private championship-length golf course and other extensive recreational facilities.

Liz said: “The decision will impose expensive on-going maintenance costs on the freehold estate landowner of any outdoor facilities. An easement to use an outdoor swimming pool, for example, places an obligation on the freeholder 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.

“Landowners could also experience 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 existing easements.”

The case distinguished between inside and outside rights, explained Liz. The rights to use Broome Park’s billiard room, television room, restaurant, bar and gym – all indoors – were not considered rights over ‘land’ but contractual personal rights.

However, following the judgment, the outdoor recreational facilities, which include the golf course, a swimming pool, putting green, croquet lawn, tennis courts and gardens would now be regarded as easements, with the rights over them benefiting the future owners of the timeshares.

“The owner of Broome Park estate, Diamond Resorts (Europe) Limited, made a number of arguments trying to establish that these rights were not easements and in particular that these rights were merely personal rights to the original parties to a legal transfer of the timeshare property,” said Liz.

“The High Court disagreed with this view and decided that the rights to use the outside communal facilities on Broome Park estate are easements which benefit the succeeding owners of the land concerned, and not just the person who was owner at the time the right was created.”

Liz Brady, a partner at Furley Page, has extensive experience of advising clients on a range of commercial property transactions involving international companies, Kent retail chains, developers, higher educational establishments and local authorities. She is a member of the Commercial Real Estate Legal Association and the Kent Law Society.

For more information and advice on property issues call Liz Brady 01227 763939.