In Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another  EWCA Civ 238, the Court of Appeal upheld the finding of the High Court that an easement can exist to use a golf course, swimming pool or tennis court.
The case involved timeshare land where the owner of each unit held the exclusive right to occupy a particular unit at specified periods each year. The estate was adjacent to the timeshare land and was the servient tenement in respect of the claimed easements. There were sporting and leisure facilities on the estate such as a tennis court, swimming pool, gardens, golf course and squash courts.
An entry in the property register of the timeshare land stated that the land had the benefit of a set of rights including the following:
“AND thirdly the right 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 (hereafter called “the facilities”) on the Transferor’s adjoining estate.”
The Court of Appeal examined each purported easement individually. The factors that the court considered included whether the dominant land derived a benefit from the land itself (which was the case with the golf course) or whether the right was simply to use the chattels and services provided on the land, without which there would have been no benefit to the dominant land (such as the billiards room).
The court noted that the categories of easements are not closed, and the perception of society as to what is “mere recreation” may change over time.
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