Easements: more than a walk in the park

Elham House, Broome Park Estate, near Canterbury
by Jessamy/Whiskers

Regency Villas v Diamond Resorts

[2017] EWCA Civ 238

Easements 2.0: updated for the twenty first century, courtesy of our new Chancellor of the High Court, Vos C.  The case has slightly unusual circumstances.  Elham House is the manor in the middle of the Broome Park Estate outside Canterbury. Former owners include everyone’s favourite First World War Lord, Lord Kitchener. 

Like many houses who have outlived their privileged place in society, Elham House has been forced to reinvent itself.  It is now a golf course and sports club.  In the grounds are a number of chalets (I can hear Lord Kitchener shuddering in distate), in which people have time shares. 

The timesharers – “Regency Villas” – had been asked to pay an increased fee for the enjoyment of the various facilities including 18-hole golf course, 3 squash courts, 2 outdoor hard-surfaced tennis courts, a putting green and a croquet lawn as well as extensive grounds and an Italianate Garden. 

So this was basically all about money, and how much the time sharers should contribute to upkeep.  The owners of the golf club etc., held that the rights the timesharers held were personal rights, and therefore could be withdrawn, whilst the timesharers claimed the uses as easements. 

So pretty particular facts to the case, but it gives us a far wider definition of what can form an easement than we had before. 

Judges have always recognised that easements must move with the times.

“The category of servitudes and easements must alter and expand with the changes that take place in the circumstances of mankind.”

said Lord St Leonards in 1852.

But Brougham LC cautioned against it getting silly:

“It must not therefore be supposed that incidents of a novel kind can be devised and attached to property at the fancy or caprice of any owner.”

So is the right to use squash courts, tennis courts, an 18 hole golf course and a swimming pool capricious and fanciful? Sir Geoffrey was certainly keeping a straight face. I’m not quite sure that his nineteenth century predecessors would have though. Re Ellenborough Park had established that recreational rights could be easements, but this was taking recreation to a whole new level.

Vos’ Weltanschauung (“world view”) means that the learned judge should check his entitlement. In Vos-land, houses routinely have swimming pools and tennis courts, and we are all familiar with how expensive it is to maintain a decent golf green, aren’t we chaps? Also, I wonder whether how many of the population of “somewhere”, rather than VosWelt, would necessarily agree with his words:

[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.”

A lot of things to think about in this case, and expect some chunky articles in Jessamy’s favourite comic, The Conveyancer.  For those unhappy souls sitting land law or conveyancing exams, dazzle your tormentors by referring to this shiny new case.