Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but the same rights by way of easements over the communal grounds and facilities.
Held: Sir Geoffrey Vos said: ‘the requirement that an easement must be a ‘right over the dominant tenement a benefit or a utility as such. Thus, an easement properly so called will improve the general utility of the dominant tenement. It may benefit the trade carried on upon the dominant tenement or the utility of living there . . an easement should not in the modern world be held to be invalid on the ground that it was ‘mere recreation or amusement’ because the form of physical exercise it envisaged was a game or a sport.’
The court considered each of the suggested easements and validated them according to their nature.
Sir Geoffrey Vos continued: ‘On its true construction, the grant allowed the claimants the right to use the existing sporting and recreational facilities on the Broome Park Estate (including the Italianate garden) together with any new, improved, or replacement facilities of the same kind replacing the existing facilities on the same areas of land, subject only to minor or de minimis extensions, but not any substantial extensions of such facilities on additional areas of land. This right was an easement insofar as it covered the facilities on the servient tenement existing in 1981 namely the golf course, squash courts, tennis courts, croquet lawn and putting green, and outdoor swimming pool.
Although, the grant purported to provide for an easement of any sporting or recreational facilities that were to be found at the date of the grant on the ground or basement floors of the Mansion House, none of the indoor facilities that existed at the time of the 1981 transfer was the subject of a valid easement.
The declarations that the judge granted were too broad.’
Sir Geoffrey Vos, Chancellor, Kitchin, Floyd LJJ
[2017] EWCA Civ 238
Bailii
England and Wales
Citing:
Cited – In re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
Appeal from – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Cited – Miller v Emcer Products Ltd CA 20-Dec-1955
An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term. . .
Cited – Dukart v District of Surrey and Others 1-May-1978
Supreme Court of Canada – The Court considered an easement allowing free access to the waters of the bay and recognised as easements the grant in favour of residential lots on a development plan of rights to use ‘foreshore reserves’ separating the . .
Cited – Blankstein, Fages and Fages v Walsh 1989
(High Court of Manitoba) Cottages were used for summer recreation. Though the acquisition of an easement by prescription to use adjoining land known as the ‘playground’ as a family recreational area was rejected on the facts, as the use was not as . .
Cited – Grant v Macdonald 1992
British Columbia Court of Appeal – the right to build and use a swimming pool and other improvements on part of a neighbour’s land (the pool was never in fact built but a gazebo was) was regarded as capable of being an easement. . .
Cited – Liford’s Case 1614
The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner’s land for to . .
Cited – Taylor v Whitehead 28-Jun-1781
Rights of Way are Particular to the Subject Land
A motion may be made in arrest of judgment after a rule for a new trial has been discharged, and at any time before judgment is entered up. It is not a good justification in trespass, that the defendant has a right of way over part of the plaintiffs . .
Cited – Mounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .
Not followed – Mounsey v Ismay Cexc 25-Jan-1865
A claim by custom for the freemen and citizens of a town, on a particular day in the year, to enter upon a close for the purpose of holding horse races thereon, is not a claim to an ‘easement’ within the 2nd section of the Prescription Act 2 and 3 . .
Cited – Newcomen v Coulson CA 1887
The grantee of an easement may enter the grantor’s land for the purpose of making the grant of the right of way effective viz to construct a way which is suitable for the right granted to him. . .
Cited – Jones v Pritchard ChD 6-Feb-1908
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to . .
Cited – Bond v Norman ChD 1939
If an Act is to have the effect of taking away a property right, ‘it must be by plain enactment or necessary intendment’ . .
Cited – Bond v Nottingham Corporation CA 1940
Sir Wilfred Greene MR said: ‘The nature of the right of support is not open to dispute. The owner of the servient tenement is under no obligation to repair that part of his building which provides support for his neighbour. He can let it fall into . .
Cited – Dunn v Blackdown Properties Ltd 1961
Application of the rule against perpetuities to expiration of rights of way. . .
Cited – Rance v Elvin CA 14-Feb-1985
The plaintiff complained that he had an easement over the defendants land for the supply of water, including the right to connect into the mains on the defendant’s land. The defendant said that the right was only to connect to the mains directly. . .
Cited – Williams v Roffey Brothers and Nicholls (Contractors) Ltd CA 23-Nov-1989
The defendant subcontracted some of its work under a building contract to the plaintiff at a price which left him in financial difficulty and there was a risk that the work would not be completed by the plaintiff. The defendant agreed to make . .
Cited – Duffy v Lamb (T/a Vic Lamb Developments) CA 10-Apr-1997
The plaintiff sought damages after the interruption of the electricity supply from neighbouring land by the defendant. An easement was established, but the defendant wanted the plaintiff to make his own arrangements for connection. The judge had . .
Cited – Greenwich Healthcare National Health Service Trust v London and Quadrant Housing Trust and Others ChD 11-Jun-1998
The plaintiff had acquired land to build a hospital, which would require re-alignment of a link road, over which the defendants had rights of way. The land was also subject to a restrictive covenant in favour of the defendants. The defendants did . .
Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002
Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
Held: . .
Cited – Carter, Carter v Cole, Cole CA 11-Apr-2006
Disputed right of way. The court recognised the right of the owner of a servient tenement to repair a roadway.
Longmore LJ said that step-in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, . .
Cited by:
Appeal from (CA) – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Others SC 14-Nov-2018
A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 02 November 2021; Ref: scu.581345