Tag Archives: easements

Regency Villas v Diamond Resorts [2018] UKSC 57 Easements in the Supreme Court: a few thoughts

Now, where were we? Sporting and recreational easements, some weird assumptions about general familiarity with golf courses …

Not one of its more earth-shattering judgments, and no more dodgy golf-focused worldviews in evidence, but the Supreme Court has now brought this long-running case to an end, to the delight of Land Law text book writers and law students studying this particular part of compulsory Land Law units.

The judgment came out (I refuse to use the slimily deferential ‘handed down’ and am not sufficiently down with the kids to say that it was ‘dropped’, despite the involvement of the so-called ‘Beyonce of the Law’ in the case …) in November 2018, and can be found (alongside summaries) via https://www.supremecourt.uk/cases/uksc-2017-0083.html

Law students will be delighted to learn that the SC did not come up with a unanimous view – I know you love it when they disagree and you have to get to grips with the differences! Lady Hale, Lord Kerr and  Lord Sumption agreed with Lord Briggs, whilst Lord Carnwath did not, and gave his views in a dissent at the end.

The overall result was that the appeal was dismissed: the argument that the recreational rights in question could not be easements did not find favour with the SC. It is, therefore clear that it will not be a sufficient challenge to a claimed easement to say ‘it can’t be an easement: it’s recreational’. So far, so unsurprising. The case also shows that the scope of allowable recreational easements is being stretched to include rights beyond walking and using the servient tenement as a garden, and also (at least on the facts of this case) to include the use of a wide array of facilities not in existence, perhaps not contemplated, at the time of grant.  It illustrates the lack of ‘teeth’ of the classic ‘requirement’ of accommodation of a dominant tenement and the ‘non-ouster’ idea which has arisen under the heading of ‘lying in grant’.

Much turns on the convoluted history of the land in question and on the wording of transfers. Lord Briggs gives a summary, (from [3] onwards).

In 1981, at the time of a key transfer, facilities in the alleged ST included:

  • golf course
  • outdoor heated swimming pool
  • three squash courts
  • two tennis courts
  • a restaurant, billiard/snooker room and TV room
  • gymnasium, including sauna and solarium
  • Italianate gardens
  • putting green
  • croquet lawn
  • outdoor jacuzzi/spa pool
  • ice/roller skating rink
  • platform tennis courts
  • a soft ball court (sic – softball?)
  • riding stables.

 

There were some difficulties and changes. In particular, the pool was closed and filled in. An indoor pool replaced the gymnasium. The putting green, croquet lawn, jacuzzi/spa pool and roller skating rink were closed and the riding stables demolished. The number of timeshare appartment was increased substantially. A dispute arose as to the rights of the timeshare owners to use the facilities without charge. The dispute took legal shape in the main issue of whether they had an easement or easements to use the facilities on the ‘ST’.

At first instance, the answer was that they did have easements. In the Court of Appeal, that was upheld in a general sense, though there was some variation in terms of the content of the easements: there was a net reduction, with the removal of rights to the new swimming pool and facilities in the basement of the mansion house. In the SC, the ‘servient owners’ sought a decision that none of the alleged rights were easements, and the ‘dominant owners’ wanted to hear that all of them were (i.e. that there were easements in relation to both ‘existing’ and ‘post-transfer’ facilities).

Lord Briggs’s account continued with a run through the familiar ‘rules’ as to which rights may be easements, referring to Re Ellenborough Park, and the source for its fourfold test, Cheshire’s textbook (that’s IMPACT for you, REF fans). Singled out for discussion are ‘accommodation’ and ‘ouster’. The idea that ‘accommodation’ is a useful criterion has never convinced me. Except in ‘land support’ cases, it really is a matter of value judgment. The strategy of many writers and judges is to say what sort of thing does not accommodate (usually with a reference to cricket grounds, about which we are all, naturally, well-informed: tiresome cultural assumptions) and to make not-terribly-helpful statements about the matter being one of facts, context etc. etc. Following this pattern, Lord Briggs [40] gives us some mention of the Oval and makes it clear that accommodation is only ‘in a sense’ a legal concept, and mostly a question of fact [43].

Having slightly ducked defining ‘accommodation’, he goes on to decide whether ‘recreational and sporting rights’ such as those in issue here, can be ruled out as not ‘accommodating’ (whatever that may mean) [44]. This is an important point: does it matter that a claimed right amounts to ‘an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement)’. One would imagine that it might. But not so. Because the mode of tenure of the DT at a particular time is to be fed into the calculation of accommodation – so because these were (at the moment) timeshare appartments, the right to use sporting and recreational facilities on adjacent land (whatever they may be at any given time) accommodated them in such a way as to justify a permanent right. [53] No argument of proportionality, nor tails wagging dogs, was to defeat this [54]. It does seem a significant reduction in the utility of the ‘accommodation’ criterion – but then a fairly vacuous criterion can be given whatever meaning we desire. Perhaps people should be able to make whatever deal they wish, to burden their land to whatever extent they wish. If so, however, we should stop pretending that property principles impose definite limits.

Lord Briggs did not consider that the rights amounted to an ouster of the servient owner, depite the suggestion that the dominant owner might have ‘step in’ rights to come in and manage and maintain the facilities if the servient owner did not [62]. Nor did the argument that classing the rights in issue as easements would impose obligations on the servient owner, in the view of Lord Briggs, hold water [66].

He recognised that this was something of an extension to the concept of an easement, but thought that the law ought to allow it. One argument in favour was that the ‘common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land’ [76]. This, of course, means being open to intensification of the use of land. It is interesting to consider how such a ‘principle’ (which also underpins Making Land Work) interacts with ideas of public good, planning and environmental concerns. Secondly [77] he notes developments in other common law jurisdictions which have indeed allowed some extension to recreational easements (though not obviously involving the sort of intensive artificial and perhaps environmentally harmful management required to maintain a  golf course).

Part of the route to arriving at approval of these rights as easements involved going against the Court of Appeal’s approach of ‘unbundling’ the various rights and treating them as separate, depending on date of creation of the relevant facilities, amongst other criteria. Instead, Lord Briggs reverts [85] to the first instance policy of treating them as a bundle of rights over such facilities as exist on the ST at any given time. This avoids potential issues of futurity and perpetuity (at which we may breathe a sigh of relief) but does also introduce some new artificiality, in creating the idea of rights associated with a country club [89]. Is there an agreed list of such rights? Not being likely ever to be associated with such an organisation, I would not know, but would suggest that there might be arguments around the edges.

Lord Carnwath dissents from paragraph 94 onwards. He is concerned about the extent of the imposition on the ST: [95] …’An easement is a right to do something, or to prevent something, on another’s land; not to have something done… The intended enjoyment of the rights granted in this case, most obviously in the case of the golf course and swimming-pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management. … Thus the doing of something by the servient owner is an intrinsic part of the right claimed.’ He is not convinced that the authorities cited justify the extension required to make easements from the rights claimed [96]: ‘In effect what is claimed is not a simple property right, but permanent membership of a country club.’ He also makes light work of the ‘non-ouster’ conclusion [102] and expresses concern at the potential extent of ‘future’ rights over the ST [109-114]. All of this seems very fair comment to me.

Anyway, the decision has been made. The climate seems to be in favour of expansion of the sorts of rights which can be easements. It will be interesting to see how far this stretches. Does recreation have to be ‘active’? Could it in fact involve spectating at sporting events (and allow us to put an end to the tedious cricket examples …)? And why should somebody be allowed a right to play golf free of charge on the ST, but not be allowed an easement to have a lovely (and golfer-free) view over it? Is the positive/negative distinction above challenge, if ‘accommodation’ can be reduced to this feeble level?

12/1/2019

Disclaimer – these are my own musings, not legal advice, and subject to revision (except the negative views of cricket and golf, which will be with me until my last breath).

Easements update: Regency Villas in the Court of Appeal

Regency Villas v. Diamond Resorts [2017] EWCA Civ 238

Regency Villas was one of those rare cases to engage with  the law students’ favourite question, ‘can a certain right be an easement?’ – a chance to use the Ellenborough Park test on something other than parking rights or storage. It concerned certain rights  for those occupying one piece of land to go onto a neighbouring piece of land (Broome Park Estate, Barham, Canterbury) for a variety of recreational and sporting reasons (including swimming, golfing, tennis and squash playing). This brought up the issue of whether rights which were ‘merely’ recreational could be said to accommodate the dominant tenement, as required by In Re Ellenborough Park [1956] Ch. 131, and whether they were too vague to ‘lie in grant’. It gave lecturers a chance to bring the concept of ius spatiandi out from the back of the cupboard. The upshot of the case was that the rights in question were allowed, and the sensible deduction from it was that the objection to something as merely recreational would be unlikely to work in future. Unusually for such a case, it went up to the Court of Appeal, and the judgment has just been reported, so what has the Court of Appeal  done with it?

Reminder of the facts

The dispute centred on a grant made in 1981,

“for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis  courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities … on the   Transferor’s adjoining estate”

This was held at first instance (HH Judge Purle QC) to amount to a grant of an easement or easements. The ‘servient owners’ appealed, claiming that the rights in question could not be easements because of (a) the expense involved in maintaining the factilities, and (b) the change of facilities since 1981. If some of the rights involved were easements, they contended that others were personal rights only, and that the judge should not have allowed them as a ‘bundle’ of easements as he did.

Over to the CA: (judgment delivered by Sir Geoffrey Vos)

  1. Yes (again) to recreational easements

First of all, the CA agreed with the first instance judge that the fact that a right may be classed as recreational is not a bar to its qualification as an easement.  Care was taken to deal with one of the most frequently-cited snubs to such rights, and to affirm (i) that the list of easements is not closed and (ii) that the list must move with the times (as interpreted by CA judges).

At [56], there is a decisive rejection of the ‘mere recreation’ Baron Martin’s view in the Exchequer case of Mounsey v. Ismay (1865) 3 H. & C. 486 at page 498, that there could not be easements for “mere recreation or amusement”:

“… [A]n 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.  To be clear, we do not regard Baron Martin’s  dictum as binding on this court, and we would decline to follow it insofar as it suggests that an easement cannot be held to exist in respect of a right to engage in recreational physical activities on servient land.”

The idea of moving with the times is emphasised at [1]: “‘Since [the time of Ellenborough Park], the culture and expectations of the population of England & Wales have radically changed.  This case has to be considered in the light of those changes.’ and at [54]: “…[T]the views of society as to what is mere recreation or amusement may change …”

The way in which the CA thinks that societal views have changed, indicating the need for a change in the rules about what qualifies as an easement, relates to the regard in which  physical exercise is held:

[54]: “…Physical exercise is now regarded by most people in the United Kingdom as  either  an essential or at least a desirable part of their daily routines.  It is not a mere recreation or amusement.  Physical exercise can, moreover, in our modern lives, take    many forms, whether it be walking, swimming or playing active games and sports. We cannot see how an easement could … be ruled out solely on the grounds that the form of physical exercise it envisaged was a game or a sport rather than purely a walk in a garden.” [54]

This might appear to be good, healthy and unobjectionable, but there are certainly some things to think about as well.

As is the way with property law decisions, this is presented as the product of a process of deduction and analogy, using both previous decisions and supposedly ‘common sense’ assumptions about life and land use.

I am not sure, for example, how many people would find the inclusion of justifications based on the allowance of profits a prendre for hunting and fishing purposes a very appealing argument.  In addition, judges do leave themselves open to a certain amount of questioning when they use some sort of normality criterion or implication when working out whether something passes the test for qualification as an easement. We may feel a little bemused, for example, by the inclusion of the information that [66] “The utility and benefit to a dominant dwelling or timeshare property of the ability to use a next-door tennis court is obvious to any modern owner.  Many country homes these days have their own tennis court or courts precisely as a benefit for the occupants.”  or [71] “…[T]he utility and benefit to the dominant tenement of the ability to use a next-door swimming pool is obvious.  As with a tennis court, some modern homes have their own pools as a benefit and a utility for the occupants.”  We may also feel that there is a certain unreality in the suggestion at [76] that “We are all familiar with the teams of groundsmen and greenkeepers that [high quality golf] courses need to employ to maintain them to the high standard that players frequently desire.” (my emphasis and disbelief).

  1. What’s in and what’s out?

The CA did think that the rights ought to have been split up and considered individually, rather than as a bundle [51]. They proceeded to look at nine different potential easements, ranging from use of the ‘formal Italianate garden’, through golfing, to use of post-1981 facilities.

So it was yes to: use of the ‘formal Italianate garden, croquet lawn, putting green and golf course but no to the right to use the reception, billiard room and TV room and other facilities within a building on the servient tenement, or a restaurant. This rejection was justified in very property-law terms, as [79] “the right granted is really not in the nature of an easement at all.  It is not about the use of any land, but the use of facilities or services that may for the time being exist on the land.”

While one may be glad to hear that “A restaurant is not like a toilet…” [79] there is food for thought in the distinctions being made here between different activities, and who is most likely to be in a position to benefit from them (so – yes to golf and tennis, no to TV, billiards, eating). Although the steps of the decision are often explicitly linked to the particular wording of the grant or facts on the ground, or realty and personalty (except when using an example based on profits, which certainly mix these concepts), there must also be an issue about the paradigmatic landowner or occupier of a dominant tenement who is lurking in some of this thinking. What does it mean for those who are not physically able (or who just prefer billiards to golf)? Is there a gendered aspect to any of this?

As far as the swimming pool was concerned, things were slightly more complex. In principle, an easement would have been legitimate in this area, but there was a problem – the servient owners had filled in the original outdoor pool and built another, indoor one. Because of the time factor and the change in location, no easement was allowed over the new pool. It was not [80] a ‘direct substitute’ for the original pool  [Crystall ball – look out for disputes over the difference between substitution and improvement on the one hand and extension on the other]. The ‘dominant tenants’ might, however, still have an easement over the (now-non-existent) original outdoor swimming pool. (The sometimes almost whimsical area of ‘non-abandonment despite non-existence’ is one of my favourite parts of easements). The court left that to be sorted out separately.

Misc.

A specific issue with regard to this case was that the slightly odd way in which the original transfer dealings were carried out might have led to particular rights being lost within 24 hours. This was something which seems to have weighed in favour of construction of the rights as easements at first instance (since this would tend to mean that they would survive), The CA was keen to keep separate the questions of qualification as an easement and acquisition of an easement: [62] “the parties’ intentions cannot ultimately validate an attempt to grant an easement of a facility that cannot in law be the subject of an easement”. A good model for law students to follow.

 

Conclusion and musings

On the specific facts of the case, this judgment showed a narrowing of the rights allowed as easements, compared to the first instance decision. Nevertheless, from a law student’s point of view, the most important thing is the reaffirmation of the fact that it will not be possible to challenge the legitimacy of  an easement simply because it is ‘recreational’.

For those who would like to take it further, there are a few things to ponder here. This does seem to be an area in which rather a lot of value judgments about land use and recreation can be brought in under cover of black letter property law principle. Arguments by analogy from the paradigm of the private right of way do seem to be rather creaky, particularly when the facts are far removed from the original context of the law of easements. Whereas many familiar easements cases involve individual landowners, this was about something rather more commercial. There are property companies and groups of companies involved. There is golf rather than ‘taking out small children in prams or otherwise’. Does Ellenborough Park, even with extensions (or improvements) really work in this context? The ways in which property lawyers consider these matters (including a sadly glossed-over ‘rather academic’ debate as to the nature of water in a swimming pool as realty or personalty – [71]) may well seem to many people to be as baffling as the words ‘incorporeal hereditament’ themselves.

GS 5/4/2017

Cheeks, jowls and pampas grass: history of neighbours

Recent read: E Cockayne, Cheek by Jowl: a history of neighbours (Bodley Head, 2012)

Only 4 years after its publication, got around to reading this. I had heard of it via an old episode of R4’s Thinking Allowed, and thought it might be worth a look to get some quotes for my lectures in Land Law. Didn’t have much at all to say about easements, unfortunately, (I think that was a gap) but very enjoyable nonetheless.  Lots of examples of nuisance, and crime between neighbours. Also learned – rather worryingly – that pampas grass is ‘the swingers’ signature plant’ (it was prominent in the front garden of my childhood home!) and that there is a porn studio near Bradley Stoke (Bristol/S. Glos). Who knew?

Also baffled by the mystery which is academic publishing. This cost me less than £5 for the Kindle version, while other things I would like to buy cost something over £60. Bonkers.