Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2015] EWHC 3564 (Ch), Judge Purle QC sitting as a High Court judge

The Claimants were owners of timeshare properties. The Defendants were the owners of neighbouring land which provided recreational facilities including a swimming pool and golf course.

As part of their claim, the Claimants sought a declaration to the effect that by virtue of a transfer of title in 1981, their timeshare properties enjoyed the benefit of an easement allowing them to free use of the Defendants’ recreational facilities.

The Court had to determine whether the right of recreation could take effect as an easement.

The Court held that a right of recreation could take effect as an easement. In re Ellenborough Park [1956] Ch131 was authority for the proposition that an easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure could exist in law. In that case the use of a pleasure garden took effect as an easement. That being so, it was a relatively small step to extend that to the enjoyment of sporting and other recreational facilities.

Rights of recreation could take effect as easements, so long as they accommodated dominant land, were not too wide and vague, did not amount to rights of joint occupation and did not deprive the servient owner of proprietorship or legal possession.