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General Principle:

In easements if the dominant land is used for recreational purposes, this may be possible to accommodate the land the test in Re Ellenborough Park [1956] Ch 131. Thus recreational rights on the property, such as the ability to use a gym do accommodate the land.


Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57


Under the case of Regency Villas, the amenities fell into disrepair at the Broome Park Estate and came under question wether they were capable of being an easement. Broome Park Estate is a rural estate in Kent that consists of two huge mansions and considerable gardens. In the late 1970s, Gulf Investments Ltd. bought a portion of the Estate, which included one of the homes, and developed it into a timeshare community and country club known as the "Broome Park Estate" development.

The project was a huge success, so much so that within a short amount of time, the remaining portion of the Estate, including the second home, was bought by Gulf Investments. This included the construction of leisure and communal facilities. On that piece of property, further timeshare apartments were built, and they were given the name "Regency Villas." In 1981, Gulf Investments sold the Regency Villas portion of the estate to Regency Villas Title Ltd., and at the same time, it gave the owners of timeshares in the Regency Villas portion of the estate the opportunity to enjoy a variety of recreational and leisure amenities located on the Broome Park Estate.

The Claimants asserted that their right to use the amenities in the leisure complex amounted to an easement, and that this right should be protected. The Defendant advanced the following arguments in support of his position that there was no easement: The rights did not allow for the dominating tenancy to be accommodated. The assertion of rights was tantamount to joint and exclusive use pushing the defendants out of their position as owners. The Defendants were required to make significant financial investments before they could enjoy their privileges. The defendants maintained that the decision in Re Ellenborough Park was incorrect to the degree that it held that an easement may enable pure pleasure rather than improved enjoyment of the dominant tenement.


By extension, the Supreme Court's decision in Regency acknowledged that recreational activities, such as swimming and playing golf and tennis, are a useful aspect of contemporary life. Additionally, the court recognised that there is no blanket limitation on the formation of recreational and sports easements. The ability to demonstrate how, in the unique circumstances of each case, the precise rights claimed over the servient land do, in fact, accommodate the dominating land is what is important.

In the case of Regency, the dominating property was purposely purchased by the owners in order to take use of the recreational amenities offered by the servient area. That, in turn, raises important considerations about what kind of limitations there may be on the way that Regency is applied to future claims to recreational rights. As Lord Briggs commented,

“This appeal offers an opportunity for this court to consider, for the first time, the extent to which the right to the free use of sporting and recreational facilities provided in a country club environment may be conferred upon the owners and occupiers of an adjacent timeshare complex by the use of freehold easements.”


This judgement reflects a significant breakthrough in the law and affirmed that the right to use lesuire facilities like a gym may be equivalent to an easement in certain circumstances. A helpful reminder that the subcategory of easements is not yet exhausted is provided by Regency Villas. However, at the same time, it is essential to bear in mind that new easements are not readily recognisable by analogy. This is particularly true in situations where the servient landowner is required to spend money or where the new easement seems to be too near to a claim to exclusive ownership of the property that is being impacted.

After Regency Villas, this may be different in situations where the right is just for the use of a recreational facility, or even perhaps in situations where the owner of the servient property is ready to invest money on the maintenance of the servient land. The following scenario is a suitable fit for this particular circumstance.


Using the gym

Facts: Olly agrees to let Emily make use of the employees’ gym at The Buzz during her lunch break whenever it is not too busy.

General principle: To be an easement, this right has to meet the requirements outlined by Lord Evershed in Re Ellenborough Park. Then characteristics appear to be present however it could be argued that the right could not meet the requirement of accommodating the dominant tenement, and that it could not form the subject matter of a grant.

Law: Again, as discussed for Emily’s right to park her car, it could be argued that the right to use the gym is not a proprietary right relating to the land but instead is a personal advantage, see Hill v Tupper (1863). However the recent extension of Re Ellenborough Park by the Supreme Court on appeal in Regency Villas (2018) recognised that recreational rights can accommodate the land if the dominant land serves a recreational purpose as confirmed by Lord briggs. The case was also a reminder that the category of easements is not exhausted even if not easily recognisable by analogy. After Regency though recreational activities are included within the meaning of the requirement of accommodating the dominant tenement, and in cases where the servient tenement holder is ready to invest money on the maintenance of the servient premises. A crucial requirement is that the right must be of “utility and benefit” including the gym as potential easement, while excluding the use of TV room or billiard room because it amounts to “mere” recreation or amusement.

Apply: Emily would be advised that her right to use the gym would be protected under the principles in Regency Villas, because the gym as dominant land serves a recreational purpose. Using a gym is considered a useful aspect of contemporary life hence it can accommodate the land and be the subject matter of a grant, as Regency Villas confirmed that the category of easements is not exhausted and recreational rights are within the limits of this possible extension.

Regency Villas Title Ltd v Diamond Resorts

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