Rights to use sporting facilities held to benefit landowners

Rights to use sporting facilities held to benefit landowners


Author: Charlotte Walker

Applies to: England and Wales

In Regency Villa Title Ltd v Diamond Resorts (Europe) Ltd, the High Court has decided that rights to use sporting facilities can take effect as easements and so benefit anyone who becomes the owner of the land in the future.

Surprisingly we did not know the legal position before this decision.

The case concerned 56 timeshare units at Elham House Canterbury. An earlier transfer of the land had granted rights over adjacent land including a right of way, a right to use services and a right to use 'the swimming pool, golf course, squash courts, tennis courts... and any other sporting or recreational facilities on the ...adjoining estate'. No mention was made of charging for the facilities.

A dispute arose between the owners of the timeshare land and the owners of the adjoining estate. The first two rights granted by the transfer were not in contention but the parties disagreed over the nature of the right to use the recreational facilities.

The owners of the adjoining estate insisted that they were personal rights only between the parties to the transfer. If they were personal, they would not run with the land so as to benefit or bind successors in title to the original owners.

The court had to decide whether or not the rights took effect as easements and so ran with the land, or whether they were personal contractual rights between the original parties, meaning that they had now been lost.

In 1956, in Re Ellenborough Park, the Court of Appeal identified the four key characteristics of an easement:

  • there must be a dominant tenement and a servient tenement (i.e. land benefited by the easement and land subject to it - as easements benefit land, not people)
  • an easement must accommodate (i.e. benefit) the dominant tenement
  • dominant and servient owners must be different people; and
  • the right must be capable of being the subject matter of a grant.

In Regency Villas, the court had no difficulty in deciding that the first three requirements were met. The benefiting and burdened properties were identifiable and had been in separate ownership since the easements were granted. The rights 'accommodated' the timeshare land because they were connected with and part of the normal enjoyment of it. The fourth characteristic was less straightforward and needed careful examination.

A recreational right that is wholly extraneous to the use of dominant land and independent of its use would not constitute an easement. However, the court found that rights of recreation can do so, so long as they benefit the dominant land and are not too wide or vague, do not amount to rights of joint occupation and do not deprive the servient owner of proprietorship or legal possession. The right to use the recreational facilities satisfied all the necessary requirements and, accordingly, constituted an easement.

As the easement was properly made and registered (which was not in dispute), the right to use the adjoining recreational facilities attached to the timeshare land. The recreational facilities could, accordingly, be used, free of charge, by the owners of the 56 timeshare units.


This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the Author

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Charlotte Walker

Professional Support Lawyer

0370 086 8715

Charlotte is a professional support lawyer responsible (with others) for keeping the firm's real estate lawyers up to date with changes in law and practice.

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