• This case related to easements, and the conditions on which they exist. In this case, the Supreme Court that a recreational right is capable of accommodating the land, under Ellenborough Park [1956], if the dominant land serves a recreational purpose, such as holidays and leisure.

Facts of the Case

  • The defendant owner of a country club estate, sold a number of properties to the claimants, and in doing so granted the Cs access to the facilities of the country club estate (the leisure facilities).
  • The claimants were subsequently denied use of the facilities, and they argued that they had an easement to use such facilities, ought to be allowed to.
  • The defendant argued that there was not an easement present because, inter alia, the rights did not accommodate the dominant tenement.

Issues in Regency Villas Ltd [2018]

  • The issues before the Supreme Court was whether the claimants’ had an easement over the leisure complex. Some questions for the court therefore were (I) whether the right to use the leisure facilities accommodated the villas, and whether (II) the use of the leisure facilities was capable of being the subject matter of a grant.

The Supreme Court (SC) Held

  • The claimants did have an easement over the leisure facilities.
  • The fact that the claimants’ right was a right of using the premises for recreational purposes did not preclude them from having an easement to do so, as it was accommodated nonetheless.
  • The right was also capable of being the subject matter of a grant: it was defined in specific terms, was not too powerful to be  able to prevent the owner from using the premises, and did not impose obligations on the owner to incur expenditure, or do anything in relation to its maintenance.

UKSC Judgment

  • [53] “In the present case the dominant tenement was to be used for the development, not of homes, still less townhouses, but of timeshare apartments. Although in terms of legal memory timeshare is a relatively recent concept, timeshare units of this kind are typically occupied for holidays, by persons seeking recreation, including sporting activities, and it is to my mind plain beyond a doubt (as it was to the judge) that the grant of rights to use an immediately adjacent leisure development with all its recreational and sporting facilities is of service, utility and benefit to the timeshare apartments as such, just as (although for different reasons) the grant of rights over a communal garden is of service, utility and benefit to a townhouse.”
  • [74] “My analysis thus far demonstrates, as it did to the courts below, that the Facilities Grant exhibited all the well-settled essential characteristics of an easement or easements, viewing each of the four characteristics (and the sub-characteristics of the fourth) separately.”
  • [81] “In my view this court should affirm the lead given by the principled analysis of the Court of Appeal in In re Ellenborough Park, by a clear statement that the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions which I have described. Where the actual or intended use of the dominant tenement is itself recreational, as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied. Whether the other conditions, and in particular the components of the fourth condition, will be satisfied will be a question of fact in each case. Whatever may have been the attitude in the past to “mere recreation or amusement”, recreational and sporting activity of the type exemplified by the facilities at Broome Park is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit.”

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