3VB Case Note Prize Winner: Regency Villas v Diamond Resorts Ius Spatiandi and Rights of Recreation

The 3VB Case Note Prize ran in the Autumn Term of 2017. 3VB is one of the UK’s leading sets of barristers’ chambers, with 70 members specialising in a wide range of commercial law and practising both nationally, in other countries’ jurisdictions and internationally. They selected the best entries for publication. More information can be found on their website: http://www.3vb.com

The recent case of Regency Villas v Diamond Resorts reignited the debate on whether a recreational easement could be valid. Here, the Court of Appeal held that the right to use various sporting facilities on the servient tenement was a valid easement. This disputed the accepted rule in Re Ellenborough Park that recreational easements are incapable of forming the subject matter of a grant. Ultimately, this leaves us with the question of whether there can still be said to be a prohibition against recreational easements, and whether such a prohibition can be justified.

The rule in Re Ellenborough Park

Evershed MR’s dicta in the seminal case of Re Ellenborough Park was instrumental through the recognition of the four-step test to determine whether a right is capable of being an easement. These were that (1) there must be a dominant and servient tenement; (2) the easement must accommodate the dominant tenement; (3) the dominant and servient owners must be different people; and (4) a right over land cannot amount to an easement, unless it is capable of forming the subject matter of a grant.[1]

In Re Ellenborough Park, Evershed MR focused primarily on the second and fourth elements. However, the disputed easement, “the full enjoyment of the pleasure ground”, was held by Evershed MR to accommodate the dominant tenement (the second element) as “the park [was] a communal garden”[2] to benefit neighbouring houses, and thus rights over it were sufficiently connected to the dominant tenement, in the same way that an ordinary garden is connected to its adjoining property. In addition, since the right increased the value of the dominant tenement, it was held to accommodate the dominant tenement.

To determine whether the right was capable of forming the subject matter of a grant (the fourth element), Evershed MR referred to the case of Mounsey v Ismay, which stated that an easement “must be a right of utility and not one of mere recreation and amusement”.[3] In Re Ellenborough Park it was determined that the right to enjoy the pleasure ground did not amount to a general ius spatiandi (right to wander) or right of recreation, and thus was capable of being an easement. However, this firmly established that where rights of recreation existed, they could not be easements.

Regency Villas v Diamond Resorts

Nonetheless, the recent case of Regency Villas v Diamond Resorts seems incompatible with this doctrine against recreational easements. The Court of Appeal confirmed that a right to use the neighbouring facilities, including the swimming pool, golf links and tennis court, was capable of being an easement. Upon initial inspection, such a decision certainly seems erroneous – it is difficult to identify activities more recreational than swimming, golfing and playing tennis. We may understand such a discrepancy through a full construction of the Mounsey v Ismay rule. The rule stipulates that the primary requirement for an easement is to be “a right of utility” and thus an easement need only not be “merely” recreational. Considering this, it is certainly possible for recreational easements to be valid, so long as they provide utility.

The Court of Appeal applied this construction. The Court identified that the ““right of utility and benefit” is the crucial requirement” and that “the essence of an easement is to give the dominant tenement a benefit or a utility as such”.[4] Furthermore, the Court stated that in modern society, exercise is perceived as “essential or at least a desirable part of [people’s] daily routines”,[5] and that utility can be defined as either “[benefitting] the trade carried on upon the dominant tenement or the utility of living there”.[6] Thus, swimming, tennis and golf facilities have utility as they improve the utility of living on the dominant tenement. Therefore, whilst a right to use such facilities is indeed recreational, it is not merely recreational – it provides utility.

Post-Regency Villas

It is frequently viewed that Regency Villas has extended the Re Ellenborough Park rule, expanding the remit of acceptability from “a walk in the garden” to golf. In reality, Regency Villas is a re-examination of the rule. There never truly was a prohibition against recreational easements, only against easements which did not provide utility to the dominant tenement. In the modern era, since recreational sport has been shown to have a tangible benefit, such easements can form the subject matter of a grant.

The question remains whether post-Regency Villas, any easement can be “merely recreational”. In Regency Villas, an easement was not granted for rights concerning amenities within the clubhouse, such as the billiards table and television room. Primarily, this was because such amenities were mere chattels, and thus incapable of becoming the subject matter of an easement. However, a secondary reason was that “the modern approach to taking physical exercise is not really applicable to recreational indoor games such as snooker or watching television”.[7] Arguably, even these indoor pursuits may no longer fall within the scope of “mere recreation and amusement” in the future. Awareness of mental health issues is becoming increasingly prominent within the public consciousness. An acceptance of the notion that recreation for recreation’s sake is useful and beneficial to relieve stress and anxiety may therefore trickle down into the legal consciousness in future judgements.

Consequently, whilst easements to play snooker, for instance, are unlikely for the meantime, the class of possible easements remains open. The increasing ambit of permissibility regarding recreational easements indicates that such a hitherto ‘merely recreational’ easement is certainly not out of the question in the not-too-distant future.

Bibliography

[1] Re Ellenborough Park [1955] Ch 131, 140 (CA)

[2] Re Ellenborough Park [1955] Ch 131, 174 (CA)

[3] Mounsey v Ismay (1865) 159 ER 621, 625

[4] Regency Villas v Diamond Resorts [2017] EWCA Civ 238, [2017] 3 WLR 644 [56]

[5] Regency Villas v Diamond Resorts [2017] EWCA Civ 238, [2017] 3 WLR 644 [54]

[6] Regency Villas v Diamond Resorts [2017] EWCA Civ 238, [2017] 3 WLR 644 [56]

[7] Regency Villas v Diamond Resorts [2017] EWCA Civ 238, [2017] 3 WLR 644 [80]