In this recent case, the Supreme Court looked at the leading case on easements (In re Ellenborough Park) and reconsidered it in a modern context and in relation to recreational and sporting easements over land.
In the late 1970s, Broome Park, a large country estate near Canterbury, was purchased to develop a timeshare and leisure complex. The sporting and recreational facilities built in the grounds included a golf course, outdoor swimming pool and tennis and squash courts. The individual buyers of the timeshare units were indirectly granted free use of the leisure facilities. Following the success of the first part of the development, further timeshare apartments were built. A house was transferred to an associated company as part of the second development and this transfer included the grant of rights to use the sporting facilities.
Over time, the sporting facilities reduced in scope and some fell into disuse. The owners of the timeshare apartments made contributions over time towards the upkeep of the facilities. When these payments stopped through a dispute, the court case started.
The timeshare owners sought a declaration from the court that they were entitled, under the easement, to free use of the facilities provided in the complex. At first instance, the High Court found for the timeshare owners and declared an easement in their favour.
In the Court of Appeal, some of the judge’s decision on matters of detail was reversed. The timeshare owners were found not to have any rights in relation to a more recently built indoor pool.
The Supreme Court, in a majority decision, backed the first instance decision. It was “abundantly plain” that the parties intended to create an easement to use the sporting and recreational facilities rather than just a personal right to use them. In addition, the grant allowed for the use of the facilities as they changed over time and not just those facilities in existence in 1981. This meant that the timeshare owners could use the modern indoor swimming pool.
This case confirms the creation of a new easement in that that the use of leisure facilities can amount to a property right and not just a personal contractual right. Furthermore, it shows that the law can evolve and reflect changes in society, like the increasing importance of sport.
Ross Paterson, Solicitor, 26th November 2018