A right to play?

Insights - 21/01/2019

Cathryn Pernstich, a Senior Associate, in our Commercial Property Team, looks at easements and their evolution.

Rights granted to do something over a parcel of land are not an unusual thing to find within the title documents of a parcel of land, but do those rights constitute an easement?

To be an easement certain criteria need to exist:

  1. There must be a dominant parcel of land (the parcel having the benefit) and a servient parcel of land (the parcel that is burdened);
  2. The easement must accommodate the dominant tenement – the right must be linked to and benefit the parcel of land in some way. It cannot confer just a personal advantage on the owner of that land.
  3. The owners of the two parcels of land cannot be the same – this means you cannot grant the easement to yourself.
  4. The right must be capable of forming the subject matter of a grant – this is where subjectivity comes into play. The right has to be capable of being granted.

The most common form of easements and those which will be an everyday familiarity are easements for a right of way over a road, the right to pass service media through adjoining land or even a right to enter to carry out repairs.  Whilst common, the grant of these easements is often not without complication and careful consideration as to actual extent and intention when creating new easements should be given each time.

There has been reluctance to extend or create new types of easement. For example, whether or not a right to park a car is an easement has been debated by the Courts without consistency.  In Saeed v Plushtrade Ltd [2001] the Court of Appeal left the question open – the High Court and the Lower Court had said a right to park could constitute an easement.  What is an easement very often comes down to a question of fact and degree depending on the individual circumstances.

What can be classed as an easement was considered again in Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2018].  In this case owners of a parcel of land that had been divided into timeshares argued that they had an easement in the form of a right to use a golf course, a swimming pool, squash courts and gardens.  Over time the original swimming pool had been filled in and a new one built.  There was a question as to whether these rights could be easements and if the right to use the swimming pool could extend to the new one.

With only one judge dissenting the Court of Appeal declared that these rights were capable of being easements.  What might have been seen as “mere recreation or amusement in the past” was now seen as being “so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit”.  The easement extended to using the new swimming pool as well.

It seems that law is evolving and moving along with the ways of modern life.  It remains to be seen how far this could extend or how it might be limited.  Are rights granted in leases to use facilities in and around housing developments now classed as easements?  Were they anyway?  If they are, can they ever be removed or stopped?  Can such rights be awarded so as to only be available from time to time or only at the landlord’s discretion?  There is potential for argument and debate to ensue.

If you have any questions or would like to discuss any of the issues raised in this blog, please feel free to contact Cathryn Pernstich, a Senior Associate within our Commercial Property team. Cathryn is contactable by telephone on 01737 854521 or by email on [email protected]

 

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.