A very recent case in the Court of Appeal Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2017] EWCA Civ 238  has considered whether a right to use a golf course, swimming pool or tennis court was capable of being an easement. 

Usually the arguments on construction of an easement relate to rights of way or light and not recreational uses such as the use of an outdoor pool. 

The Court of Appeal has held that although the right to use a golf course, swimming pool or tennis court is recreational, this recreational use does not prevent that right from being an easement. The court have highlighted that the categories of easements are not closed. 

Every property law student will remember the case of Re Ellenborough Park , which highlighted that for a right to be an easement it must have all of the following characteristics: 

1. There must be dominant land (i.e. benefitting land) and servient land (land subject to the right).

2. The right must accommodate the dominant land. 

3. The dominant and servient land must be owned by different persons. 

4. The right must be capable of forming the subject matter of a grant. 

Re Ellenborough Park also highlighted that, in the construction of an easement it must be considered whether such right would constitute a mere right of recreation, possessing no quality or utility or benefit. The judges in the recent Regency Villas case have  discussed that in the 60 years since Re Ellenborough culture and expectations of the general population have radically changed. 

This case considered the rights of time share properties to access the facilities of a neighbouring estate by utilising the benefit of a right granted in 1981. 

The judges concluded that the original construction in the High Court was too broad, and actually the timeshare properties were allowed the right to use the existing sporting and recreational facilities on the estate together with any new, improved, or replacement facilities of the same kind replacing the existing facilities on the same areas of land, but not any substantial extensions of such facilities on additional areas of land. The right was an easement insofar as it covered the facilities on the servient land existing in 1981 namely the golf course, squash courts, croquet lawn and putting green and outdoor swimming pool. 

For the full case please go to http://www.bailii.org/ew/cases/EWCA/Civ/2017/238.html