Development in the law to create new right to use recreational facilities

A Supreme Court case (Regency Villas Title Ltd v Diamond Resorts) in November 2018 found that a right or “easement” can exist to use recreational facilities, such as a golf course, swimming pool or tennis court. This is an extension of the law to create a new category of easement and to accommodate a different type of property, in this case time share ones (as long as the four conditions of an easement are also satisfied, which are beyond the scope of this article).

The case concerned leisure facilities at a country estate, Broome Park. The claim was made by the owners of the adjoining timeshare properties at Elham House, which had once been a part of Broome Park. When Elham House was sold off, the Transfer granted a right for the buyer, its successors and any occupiers to use the swimming pool, golf course, squash courts, tennis courts, certain floors of Broome Park Mansion House, gardens and any other recreational facilities at Broome Park. The court found that there was clearly an intention to grant an easement here, and not just a personal right, as it was expressly stated to benefit successors.

Over time, the outdoor swimming pool was filled in and a new one built inside. Broome Park tried to argue that this extinguished the right. However, the court held that the precise nature and location of the facilities might change but the right applied to the facilities as a whole, including the indoor pool and other indoor facilities, such as the billiard room and sauna. The Elham House owners were entitled to compensation for fees that they had previously been charged to use these.

There was also a debate about maintenance responsibilities. An inherent characteristic of an easement is that the owner of the land bound by it should not have to be anything more than passive. However, a shared expectation that Broome Park would maintain the facilities was not the same as an obligation on them to do so. A distinction was made between the facilities here and rides on a miniature steam railway or an artificial ski slope. The Broome Park facilities did not require active management of any particular facilities as the right was only to use such facilities that exist in the Park from time to time.

As an extension of this, there was a dispute about whether the grant of this right would deprive the owners of Broome Park of their enjoyment or control of their land, if the Elham House owners could exercise an implied “step-in” right to maintain the facilities if Broome Park failed to do so. However, it was found that as long as the facilities could be used by Elham house without taking control of the Park then there would be no such deprivation that could prevent an easement from existing.

However, the court highlighted that the structure used in this case was not to be recommended. Broome Park owners are now in a position where they have to allow the Elham House owners to use their facilities for free, without any specific arrangements as to who pays for the maintenance costs. The case highlights that, when granting any rights, the parties should carefully consider who will be responsible for maintenance and payment, and whether the rights are intended to benefit successors.

Fenella Eddell is a solicitor in the property department at Barker Gotelee, Suffolk solicitors.

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