The Supreme Court held that the free use of Broome Park’s sporting and leisure facilities could be granted to the neighbouring Regency Villas timeshare land as a freehold easement. A majority decided that recreational rights are not disqualified merely because they are enjoyed for their own sake, and that the 1981 grant covered the leisure complex as its facilities changed, including a later indoor swimming pool.
The two timeshare schemes
Broome Park, near Canterbury, was divided in 1967. Elham House and its surrounding land became the alleged dominant land; the remainder, including the Grade I listed Mansion House, was the alleged servient land, called the Park.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The Park’s first timeshare scheme used a lease. It gave owners access to a golf course, pool and other facilities and required the landlord and its successors to maintain them.
Elham House was then redeveloped as Regency Villas. Its principal attraction was the same free use of the Park’s facilities, but a freehold structure was used because comparable repairing obligations were not expected. By a transfer dated 11 November 1981, Gulf Investments granted Elham House’s transferee, successors, lessees and occupiers the right to use “the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of the Broome Park Mansion House, gardens and any other sporting or recreational facilities” on the adjoining estate. The transfer itself was lost, but the grant was recorded at the Land Registry.
Gulf Investments also covenanted to maintain the facilities. It was agreed that this positive obligation, unsupported by a lease, did not bind later Park owners. The promoters apparently expected paying members of the public to fund the club. That expectation was not fulfilled. Facilities declined, the outdoor pool was filled in by 2000, and other amenities closed. After the Broome Park owners sued under their lease, a new pool was built in the Mansion House basement. From about 1983 Regency Villas owners contributed voluntarily, generally by agreement until the end of 2011. They were then charged for particular facilities and paid, while maintaining that use should be free.
The proceedings below
Regency Villas Title Ltd, owner of Elham House, and members of the Regency Villas Owners Club sought a declaration that they had an easement to use all sporting or recreational facilities provided in the Park from time to time, an injunction, and repayment of sums paid since 2008. The Park owners denied any easement and counterclaimed a reasonable payment for facilities supplied from 2012.
Judge Purle QC upheld the claims except repayment for the period before 2012, finding those payments had been made by agreement rather than under protest. That monetary claim was not pursued further. The Court of Appeal agreed that the grant created an easement, but treated each facility separately and confined the right to facilities existing in their 1981 locations. It excluded the Mansion House’s ground floor and basement and the replacement pool, reduced the compensation, and awarded the Park owners a reasonable payment for the excluded facilities.
Why the majority recognised an easement
Lord Briggs, with whom Lady Hale, Lord Kerr and Lord Sumption agreed, explained that an easement is a property right benefiting one parcel of land and burdening neighbouring land. Unlike a personal permission, it binds later owners. The settled requirements are dominant and servient land, different owners, a right that accommodates the dominant land, and a right capable of being granted. Only the last two were disputed.
Accommodation means a connection with the land’s normal use, not merely an increase in value. Free test-match entry annexed to an ordinary house might add value without serving its use as a home. Regency Villas, by contrast, was intended for holiday timeshare. Rights over the immediately adjacent leisure complex served that use, just as shared use of the garden in In re Ellenborough Park served the surrounding townhouses. Enjoyment for its own sake was not fatal. Nor did it matter that the facilities were a principal attraction: a right serving the dominant land need not be proportionately subordinate to some other use. Hill v Tupper, concerning a canal pleasure-boat monopoly annexed to a tiny bankside plot, did not decide otherwise.
The grant also had to be sufficiently certain, not precarious, not so invasive as to oust the servient owner, and not dependent on a legal duty requiring that owner to spend money or act. The majority said that recreation and sport now plainly have utility, so the old objection to a “mere right of recreation” added nothing once accommodation was established.
The ouster argument assumed that, if the Park owners stopped managing the complex, step-in rights would force the timeshare owners to take possession or control, especially of the golf course. Lord Briggs said ouster is tested against the parties’ ordinary expectations at the grant, not against that contingency. The expectation was management by the Park’s owners. Step-in rights permit only reasonable access and necessary work. The courts below had found that the course could be kept playable without the dominant owners taking control, and no basis was shown for departing from that finding. The precise outer limit of ouster was left unresolved.
A right to use a facility can subsist even if the parties expect its owner to maintain it. The grant itself imposed no duty to maintain the facilities or contribute to their cost. The separate personal covenant did not alter the character of the right granted.
The majority accepted that the grant broke new ground beyond Ellenborough Park: the facilities were more extensive, were shared with other timeshare groups and the paying public, and their cost was expected to fall on the servient owners. It also accepted that a lease, like the Broome Park scheme, is a better vehicle for enforceable maintenance obligations, and that a freehold easement may outlast a leisure complex without any present statutory power of discharge. Even so, the common law should accommodate timeshare and recreational use where the four conditions are met.
The extent of the right
Lord Briggs agreed with the trial judge that this was one right to use the leisure complex’s sporting and recreational facilities as they existed from time to time, not separate rights frozen to each 1981 location. The absence of express words of futurity was supplied by the nature of a complex bound to change. That construction did not create future easements invalidated by the perpetuity rule. Unlike grants over sewers or a garage that did not yet exist, this was an immediate right over an existing complex; later changes were analogous to rerouting pipes.
The replacement basement pool was therefore included once completed. Shared areas of the ground floor and basement were included as part of the country-club complex, even if a restaurant or lavatory was not independently a sport. Indoor recreation, including a gymnasium, sauna, billiard room and television room, was not excluded merely because it used equipment. The Court of Appeal’s approach, Lord Briggs held, would have discouraged beneficial alterations by tying rights to old locations.
He did not decide hypothetical questions that had not arisen, including facilities built on the remaining farmland or private gardens and pools created if parts of the Park were sold. He suggested that the grant might be confined to the Mansion House and the leisure complex’s then curtilage, or to facilities constructed for multiple use, but those possibilities did not defeat the judge’s reading of the rights in dispute.
The dissent
Lord Carnwath would have allowed the Park owners’ appeal. He considered an easement to be a right to do or prevent something on another’s land, not a right to have something done. Provision, maintenance and management by the Park owners were intrinsic to the intended golf course and pool, making the claim closer to permanent country-club membership than to the garden access recognised in Ellenborough Park. He did not accept that the courts below had evidence-based findings that the timeshare owners could realistically run the facilities, and thought the servient owner’s choices about layout, equipment and operation defined the right. He would have treated the grant as one package and construed it narrowly.
Verdict: By four votes to one, the Court dismissed the Park owners’ appeal and allowed the timeshare parties’ cross-appeal. It restored the trial judge’s orders, including compensation to be assessed for payments made under protest from 2012.
