Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and another [2017] EWCA Civ 238, Sir Geoffrey Vos C, Kitchin LJ, Floyd LJ

The Appellants were the owners of a mansion house and estate. The First Respondent owned a number of timeshare properties situated on the grounds of the estate. The remaining Respondents represented the timeshare owners.

The appeal concerned whether a right granted by a transfer in 1981, which enabled the freeholder and lessees of the timeshare properties the use of a number of recreational facilities, amounted to one or more easements. At first instance it was held that the transfer did amount to easements. The Appellants appealed arguing that the rights granted (a) could not amount to easements because the facilities could only be maintained at considerable expense, (b) extended to facilities that were not in the contemplation of the parties at the time of the transfer, and (c) were in reality a bundle of easements and personal rights which the judge below had failed to unpack.

It was held that the grant was the third of three grants, the first two of which were accepted to be grants of recognised easements, the inference, therefore, was that the words used in the third grant, which replicated those used in the first grant was also intended to be the grant of an easement. In theory, it was possible to grant an easement which only took effect in the future. Parties who wished to achieve the grant of such an easement would need to make clear the extent of what they intended.

So long as the dominant and servient tenements existed, an easement would continue to exist in respect of a new or improved facility. However, on the proper construction of the grant it did not include any major extensions, substitutions or moved facilities. Further the lack of any obligation to maintain the facilities provided did not militate against the existence of one or more valid easements.

In principle the judge below ought to have unpacked the grant and considered each of the purported easements in turn. The requirement that an easement must be a “right of utility and benefit” was the crucial requirement. Thus, an easement properly so called would improve the general utility of the dominant tenement. Accordingly, an easement can exist in respect of a right to engage in recreational physical activities on the servient land, Re Ellenborough Park. [1956] Ch. 131 applied.