In the last year, the Supreme Court has confirmed the existence of a new type of easement: an easement to use leisure facilities on adjoining land, forever, and at no charge. It is not often that new law is made but the case of Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd  UKSC 57 is one of those rare examples.
What is an easement?
Easements are rights that are more than personal or contractual rights. They attach to the land and consequently can benefit and bind successors in title. For a right to amount to an easement, four well-established conditions must be met:
- There must be “dominant” land (which enjoys the benefit of the easement) and “servient “land (over which the easement is exercised)
- The right must accommodate the dominant land
- The dominant and servient land must be owned by different parties
- The right must be sufficiently clear and capable of forming the subject matter of the grant.
What happened in the Regency Villas case?
In the Regency Villas case, timeshare units (the ‘dominant land’ ) had been granted rights to use the leisure facilities on the adjoining land of Broome Park Mansion House (the “servient land”) when the timeshare units had been sold off by the owners of Broome Park Mansion in 1981.
In 2000 the outdoor heated swimming pool that had existed at the time of the 1981 transfer was closed and replaced with an indoor swimming pool in the basement of the mansion house. The owners of Broome Park Mansion argued that the right to use the facilities did not extend to the newly installed indoor swimming pool.
The Supreme Court considered the question of whether the particular recreational or sporting rights granted accommodated the dominant land. It confirmed that where the actual or intended use of the dominant land is itself recreational this condition will generally be satisfied. The use of timeshare units is generally for recreational use by holidaymakers seeking recreation and the Court held that the grant of rights to use an adjacent leisure development with all its recreational and sporting facilities is of benefit and ‘accommodates’ the timeshare apartments.
The Supreme Court’s decision confirmed that the intention had been to grant a right in the form of an easement and that the grant was of a single comprehensive right to use a complex of facilities as they evolved, not as they were in 1981.
The Court cited the leading case of Re Ellenborough Park  EWCA Civ 4 and compared the benefit of sporting facilities for timeshare units to the benefit of rights to use communal gardens granted to townhouses in the Ellenborough Park case which was held to satisfy the accommodation requirement.
With regard to the fourth condition for easements, the Court held that the grant of a right to use the facilities in the Regency Villas case was insufficiently clear and concise terms and the right granted by the 1981 transfer was more than a purely personal right, expressed to be conferred upon the successors in title, lessees and occupiers of the timeshare development.
The sting in the tail
Whilst the owners of the leisure facilities at Broome Park Mansion could not be forced to maintain the facilities (as an easement cannot require anything more than mere passivity on the part of the servient owner), if they did maintain them they could not ask the timeshare owners of the dominant land benefiting from the easement to pay a share of the maintenance costs. The Court’s reasoning for this was that the enjoyment of the rights to use the facilities could not be achieved without the maintenance and management by the owner of the estate of those facilities and therefore they should be enjoyed for free. Presumably an express obligation to contribute to the maintenance costs would have been required in the transfer deed to override this presumption. Consequently, the Court ordered Broome Park Mansion’s owners to reimburse the timeshare owners for payments Broome Park Mansion had charged them for the maintenance of the facilities from 2012 onwards.
The case is considered as breaking new ground and extends the current law to create a new type of easement. The case is arguably specific to its facts, in particular, the fact that the land claiming the rights consisted of timeshare units which are used for leisure purposes. We will have to wait and see what impact the case will have.