The recent case of Regency Villas v Diamond Resorts involved a dispute over an alleged easement. A transfer of the land – that took place in 1981 – created the following right over adjoining land:
‘for the Transferee its successors in title its lessees and the occupiers from time to time… to use the swimming pool, golf course, squash courts, tennis courts… and any other sporting or recreational facilities on the Transferor’s adjoining estate’.
The land itself was held by Regency Villas, but was split into ‘Elham House’, featuring 26 units. The owner of each unit paid the ‘Regency Villas Owners Club’ a fee for the maintenance of the land. Regency Villas Owners Club, meanwhile, held the land as nominee for a separate company.
The owners sought to show that they were entitled to use – for free – the sporting / recreational facilities on the adjoining land.
In order for an easement to exist over land there must be:
- A dominant and servient tenement (and the easement must accommodate the dominant)
- Different owners of the dominant and servient tenement, and
- The right must be capable of being the subject matter of a grant.
The High Court confirmed that the owners had the benefit of the rights contained in the 1981 transfer, and therefore would not have to pay to exercise those rights.
There was clearly a dominant and servient tenement, and since the 1981 transfer both were owned by different people. The High Court held that if the rights were too wide and vague, or constituted a mere recreational right (with no quality of utility or benefit) or amounted to rights of joint occupation, then an easement would not be created.
The Court held that there would be no problem in granting such an easement, as long as the intention to grant the easement was clear in light of the circumstances. This only applies however, where there is an intention to create an easement, as opposed to a mere personal right.
If you are having troubles with easements, contact one of our friendly Property solicitors today who will be happy to assist. Our telephone number is 01753 486 777, or alternatively pop into our offices situated at Windsor Crown House, Slough, SL1 2DX.