Easements – rights to use sporting or recreational facilities

Summary

The decision confirmed that sporting or recreation rights (such as the right to use a golf course or tennis court) are capable of taking effect as easements, although the Court of Appeal narrowed the rights allowed as easements compared with the first instance decision. The Court held that there was no legal impediment to the grant of such easements, so long as certain conditions were met (detailed below) and it noted that the perception of society as to what is ‘mere recreation’ may change over time.

Facts

The claimant company was the owner of freehold land, which was held on trust for various timeshare owners, who were also claimants to the action. The defendant company owned an adjacent plot of land which benefitted from sporting and recreational facilities.

The freehold land was transferred to a predecessor of the claimant company in 1981 with the benefit of the right for “the transferee its successors in title its lessees and the occupiers from time to time of the property” to use the sporting and recreational facilities on the “adjoining estate”. Both the timeshare land and the adjoining estate were subsequently owned by various persons following the 1981 transfer.

As there was no privity of estate between the timeshare owners and the defendant company, the timeshare owners could not enforce the rights to use the sporting and recreational facilities on the adjoining estate as leasehold covenants. The timeshare owners therefore sought to enforce their rights to use the sporting and recreational facilities as easements.

Issues

Whether the rights to use the sporting and recreational facilities of the adjoining land could be enforced as easements or whether they were no more than mere rights of recreation.

Decision in First Instance

The Court in Ellenbrough Park, Re [1956] CH 131 held that for a right to exist as an easement, four criteria must be met:

1. there must be a dominant tenement and a servient tenement. Here, the dominant land was the timeshare land and the servient tenement, the adjoining estate;
2. the easement must “accommodate” (benefit) the dominant tenement. Here, the dominant and servient tenements were readily identifiable and had been separately owned since the 1981 transfer;
3. the dominant and servient owners must be different people, as was the case here; and
4. the right must be capable of being the subject matter of a grant.

It was the fourth criterion, which required more attention from the Court in this case. In line with the questions laid out in the case of Re Ellenborough Park, the Court held that the right to use sporting or recreational facilities could be the subject matter of a grant (and therefore an easement) so long as:

• the right was not too wide or too vague;
• the right does not amount to a right of joint occupation; and
• the right does not deprive the servient owner of proprietorship or legal possession of the servient land.

It was already established in the case of Re Ellenborough Park that an easement to permit a dominant owner to walk over all parts of a servient tenement could exist in law. The Court saw no legal impediment in extending this principle to sporting and recreational facilities, so long as the above criteria were met and the intention was to grant an easement (rather than a personal right) to the grantee, in light of the material surrounding circumstances.

In this case, the Court was satisfied that the rights of the timeshare owners to use the sporting and recreational facilities of the adjoining estate were capable of taking effect as easements and the Court made a declaration to this effect.

Decision on Appeal

The Court of Appeal agreed with the first instance judge that the fact a right may be classed as recreational is not a bar to its qualification as an easement.

The Court of Appeal thought the rights ought to have been split up and considered individually, as opposed to a bundle. It therefore considered each of the nine different potential easements independently.

The grant allowed the claimants the right to use the existing sporting and recreational facilities on the Broome Park Estate along with new, improved, or replacement facilities of the same kind replacing the existing facilities on the same areas of land, subject only to minor extensions but not substantial extensions of such facilities on additional areas of land. Valid easements were therefore granted in respect of the formal Italianate garden, the golf course, squash courts, tennis courts, croquet lawn and putting green, and outdoor swimming pool. The utility and benefit to a dominant dwelling or timeshare property of the ability to use a next-door tennis court or swimming pool was obvious to the modern owner.

The grant also purported to provide for an easement of any sporting or recreational facilities that were to be found at the date of the grant on the ground or basement floors of the Mansion House. However, none of the indoor facilities that existed during the 1981 transfer was the subject of valid easement. The Court of Appeal did not accept that the rights over the reception, billiard room, TV room, restaurant, bar, gym, sunbed and sauna could be easements because they were services and facilities that cannot exist without the chattels that make them what they are. To operate them, should the defendants cease business, the claimants would need to take possession of them. As this went beyond the means of an easement, the Court of Appeal felt the first instance judge had construed the grant too broadly in that respect. The Court of Appeal therefore held there was no valid grant of an easement over the ground floor or basement of the Mansion House on the adjoining estate and recreational and sporting facility easements were limited to the facilities outside of the Mansion House.

In terms of the swimming pool, the servient owners had filled in the original outdoor pool and built an indoor one. Due to the time factor and location change, no easement was allowed over the new pool. It was not a ‘direct substitute’ for the original pool. However, the ‘dominant tenants’ might still have an easement over the now non-existent original outdoor swimming pool.

Supreme Court decision

The majority of the Supreme Court found that there was an intention in the 1981 transfer to confer a property right in the form of an easement and that this was a right to use a complex of facilities as they evolved, rather than limited to those available in 1981. 

The Court accepted that the grant of an easement in this case was novel, given the running costs and operational responsibilities involved with the facilities.  However, it concluded that the grant of purely recreational (including sporting) rights over land can amount to an easement, provided that they satisfy the four well-settled criteria listed above. 

Comment

Whilst cases including Re Ellenborough Park have indicated that some rights of recreation might be capable of constituting easements, this case is the first to confirm that rights to use sporting and/or recreational facilities, such as a golf course, swimming pool or tennis court, are capable of taking effect as such.  This serves as a reminder that the question of what constitutes an easement is open to expansion, so long as the criteria laid down in Re Ellenborough Park are satisfied.

It is worth noting that the servient owner is unable to charge the timeshare owners for using the facilities as no such right was expressly reserved in the transfer (even though some of the timeshare owners have 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.

This article was written by Emma Humphreys. For more information please contact Emma on +44 (0)20 7203 5326 or emma.humphreys@crsblaw.com