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

KEY POINTS

• If the primary purpose of the dominant tenement is recreational, then a recreational easement will usually satisfy the “accommodation” requirement.

• To be valid, an easement must satisfy certain requirements:

  1. There must be a dominant and a servient tenement, meaning there must be a separation of ownership between the party benefiting from the easement (dominant owner) and the party burdened by the easement (servient owner),

  2. The easement must accommodate the dominant tenement, meaning it must provide a practical benefit or convenience to the owner of the dominant land,

  3. The right claimed must be capable of forming the subject matter of ownership, meaning it must be capable of being owned and legally enforceable, and

  4. The easement must be sufficiently definite and certain, so that its existence and scope can be determined with reasonable certainty.

• An easement cannot be created merely for the benefit of occupiers or tenants of a particular property, as the right must attach to the land itself.

FACTS

• Broome Park, a country estate near Canterbury, originally consisted of the Mansion House, Elham House, and surrounding lands. In 1967, Elham House and its adjacent land were conveyed away, becoming the alleged dominant tenement in a disputed easement. The seller retained the rest of Broome Park, including the Mansion House, which served as the alleged servient tenement.

• In 1979, Gulf Investments Ltd acquired Broome Park with the intention of developing a timeshare and leisure complex. The purchasers of timeshare units formed the Broome Park Owners Club (BPOC) and were granted free use of the communal and leisure facilities through a lease agreement.

• Subsequently, Elham House was re-acquired in 1980, and planning permission was obtained to construct additional timeshare apartments known as Regency Villas. Gulf Investments transferred Elham House to an associated company, granting the rights to use the sporting and recreational facilities to the members of the Regency Villas Owners Club (RVOC).

• Over time, there were reductions in the available facilities and disagreements arose regarding contributions from RVOC members. The new owners of Broome Park disputed the enforceability of the RVOC members' rights to use the leisure complex and attempted to charge them for its usage.

• In response, the freehold owner of Elham House and the RVOC members sought a declaration that they were entitled, through an easement, to free use of all the sporting and recreational facilities within Broome Park.

COMMENTARY

• This case underscores the importance of a clear separation of ownership between the dominant and servient tenements, a practical benefit or convenience to the dominant land, the legal ownership and enforceability of the right claimed, and certainty in defining the existence and scope of the easement.