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 and cannot be required to pay for the use of those rights: ‘I reject the suggestion that the rights in this case are as a matter of construction to be construed as merely personal to the parties to the 1981 Transfer. They form part of a group of rights the first two of which (rights of way and of passage) are clearly easements. Further, the rights are expressed to benefit successors and occupiers from time to time: compare Ellenborough Park at p 167. Moreover, construing the rights as purely personal would produce the unexpected consequence referred to in paragraph 29 of this judgment.’
Purle QC HHJ
[2015] EWHC 3564 (Ch), [2016] 1 P andCR DG19, [2015] WLR(D) 506, [2016] 4 WLR 61
Bailii, WLRD
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 . .
Cited – Attorney General of Belize and others v Belize Telecom Ltd and Another PC 18-Mar-2009
(Belize) A company had been formed to manage telecommunications in Belize. The parties disputed the interpretation of its articles. Shares had been sold, but the company was structured so as to leave a degree of control with the government. It was . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
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 – 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 – Duncan v Louch QBD 4-Feb-1845
A dominant owner of an easement has no obligation to repair or maintain the land over which the right of way is exercised.
An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist . .
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 – Riley v Penttila 20-Mar-1974
(Supreme Court of Victoria) The Court recognised as an easement the grant of land within a residential development ‘for the purposes of recreation’ over a garden or a park, in favour of residential lots, enthusiastically following the lead given in . .
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 – 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 – City Developments v Registrar General of the Northern Territory 2-Jun-2000
(Supreme Court of the Northern Territory) – Hearing of preliminary point – whether purported grant of an easement an easement – easement has four essential criteria – easement does accommodate dominant tenement – the grant possessed all four . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
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 by:
Appeal from – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
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 . .
At First Instance – 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.
Updated: 10 October 2021; Ref: scu.556485
