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A new class of easement

4 May 2016

The recent Regency Villas case, which concerned the right to use sporting and leisure facilities, has served as a useful reminder that the classes of possible easements are not closed and that the test in the Re Ellenborough Park case must continue to be applied to ascertain whether a right constitutes an easement. Owners of land should be careful in establishing the terms on which they permit recreational use of their land by their neighbours.

Background - what is an easement?

An easement is a right benefitting a piece of land (dominant land) that is enjoyed over another piece of land (servient land) owned by somebody else. Usually an easement allows the dominant landowner to do something positive on the servient land such as use a roadway or path or run services. An easement may also be negative such as one preventing interference with rights to light. An easement may be created by deed, by statute or by will/prescription.

The case of Re Ellenborough Park [1956 Ch 13] set out the key characteristics that a right must have to qualify as an easement. The case established a four part test:

  1. There must be dominant land (which enjoys the benefit of the easement) and servient land (the land over which the easement is exercised) (both pieces of land must be identifiable);
  2. the right must accommodate the dominant land i.e. be reasonably necessary for the better enjoyment of that land;
  3. the dominant and servient land must be owned by different persons; and
  4. the right must be capable of forming the subject matter of a grant i.e. the easement must be clear and certain and must not be a right merely for amusement. In addition, the right must not be so extensive that it confers exclusive possession on the user.

Unless all four strands of this test are satisfied, the right concerned will not be an easement and is likely to be a mere personal right, which is not transferable.

Facts of the case

Regency Villas Title Ltd ("Regency") owned the freehold of land on which timeshare units were built ("Timeshare Land"). The Timeshare Land was held on trust for the timeshare owners. The neighbouring estate was owned by Diamond Resorts (Europe) Ltd ("Diamond"). On Diamond's neighbouring estate, there were various leisure and sporting facilities such as a swimming pool, golf course, tennis and squash courts and gardens. These facilities were open to the public who paid to use them.

When the title to the Timeshare Land was transferred to Regency's predecessor in title in 1981 by the then common owner of the Timeshare Land and adjoining estate, it provided that the Timeshare Land had the benefit of rights of way and services over the neighbouring estate, together with the right for the transferee and its successors in title plus tenants and occupiers to use the sporting and leisure facilities on the transferor's adjoining estate (now Diamond's land).

Diamond argued that the "user" rights contained in the 1981 transfer were not capable of running with the land i.e. attaching to the Timeshare Land in perpetuity so as to benefit successors in title, and as a result, Regency did not have the right to use the facilities on their estate. Regency issued a claim against Diamond to establish an easement enabling it to use the facilities free of charge.


The Court held that the right to use the sporting and leisure facilities was an easement. The Court found that the first, second and third limbs of the Re Ellenborough Park test were easily met.

Therefore, the main question for the Court was whether the fourth part of the test - whether the rights were capable of forming the subject matter of a grant - could be met. The Court held that the rights were not vague or excessive as they were for the use of all leisure facilities on the estate - these were more than a mere right of recreation. The rights did not amount to joint occupation and did not deprive Diamond of legal possession of its estate. Accordingly, it was decided that there was no barrier to grant of an easement to use such facilities.

It is important to note that the Diamond was unable to charge Regency for the use of the facilities as no such right had been expressly reserved (even though some of Regency's timeshare owners had previously made contributions). Accordingly, if you are granting rights over your land, express reservation of the ability to require payments or contributions towards maintenance costs or otherwise should be made if you intend to recover these from the beneficiary/rights user.

For the Court, it was a small step to extend the decision in Re Ellenborough Park (where it was decided that use of a pleasure ground took effect as an easement) to the right to use a golf course, swimming pool or tennis court and the case provides welcome authority on such rights and that the class of easements is not fixed.

This article was written by Caroline Isherwood.

For more information, please contact Caroline on +44 (0)20 7427 6762 or caroline.isherwood@crsblaw.com.