United Kingdom Supreme Court

The Facts

“TOGETHER WITH firstly the right of way for the Transferee its successors in title its lessees and the occupiers from time to time of the property at all times with or without vehicles for all purposes in connection with the use and enjoyment of the property over and along the drive ways and roadways (hereafter called ‘the roadways’) shown coloured blue on the plan attached hereto.

AND Secondly all the right to the full and free passage of gas water soil electricity and any other services from and to the property in and through any pipes drains wires cables or other conducting media now in under or over the Transferee’s adjoining land or constructed within 80 years of the date hereof.

AND thirdly the right for the Transferee its successors in title its lessees and the occupiers from time to time of the property 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 (hereafter called ‘the facilities’) on the Transferor’s adjoining estate.”

The Litigation

The Issues

Construction of the Facilities Grant

The Appeal

i)                    The rights did not accommodate Elham House, the dominant tenement;

ii)                 Their exercise by the RVOC timeshare owners would amount to an ouster of the appellants as owners of the Park;

iii)               The enjoyment of the rights by the RVOC timeshare owners depended upon substantial expenditure by the appellants in managing and maintaining the facilities.

i)                    There must be a dominant and a servient tenement;

ii)                 The easement must accommodate the dominant tenement;

iii)               The dominant and servient owners must be different persons;

iv)               A right over land cannot amount to an easement, unless it is capable of forming the subject-matter of a grant.

“One of the fundamental principles concerning easements is that they must be not only appurtenant to a dominant tenement but also connected with the normal enjoyment of the dominant tenement.”

Citing from Bailey v Stephens (1862) 12 CB(NS) 91, at 115, he continued:

“It must … have some natural connection with the estate as being for its benefit ...”

“In our view, the requirement that an easement must be a ‘right of utility and benefit’ is the crucial requirement. The essence of an easement is to give the dominant tenement a benefit or utility as such. Thus, an easement properly so called will improve the general utility of the dominant tenement. It may benefit the trade carried on upon the dominant tenement or the utility of living there.”

Recreational rights

“… we are of opinion that to bring the right within the term ‘easement’ in the second section it must be one analogous to that of a right of way which precedes it and a right of watercourse which follows it, and must be a right of utility and benefit, and not one of mere recreation and amusement.”

“The enjoyment contemplated was the enjoyment of the vendors’ ornamental garden in its physical state as such - the right, that is to say, of walking on or over those parts provided for such purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to rest in or upon seats or other places provided; and, if certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulation: but not to trample at will all over the park, to cut or pluck the flowers or shrubs, or to interfere in the laying out or upkeep of the park.”

“Such use or enjoyment is, we think, a common and clearly understood conception, analogous to the use and enjoyment conferred upon members of the public, when they are open to the public, of parks or gardens such as St James’s Park, Kew Gardens or the Gardens of Lincoln’s Inn Fields.”

“In such a case, the test of connection, or accommodation, would be amply satisfied; for just as the use of a garden undoubtedly enhances, and is connected with, the normal enjoyment of the house to which it belongs, so also would the right granted, in the case supposed, be closely connected with the use and enjoyment of the part of the premises sold. Such, we think, is in substance the position in the present case. The park became a communal garden for the benefit and enjoyment of those whose houses adjoined it or were in its close proximity. … It is the collective garden of the neighbouring houses, to whose use it was dedicated by the owners of the estate and as such amply satisfied in our judgment, the requirement of connection with the dominant tenements to which it is appurtenant. The result is not affected by the circumstance that the right to the park is in this case enjoyed by some few houses which are not immediately fronting on the park. The test for present purposes, no doubt, is that the park should constitute in a real and intelligible sense the garden (albeit the communal garden) of the houses to which its enjoyment is annexed.”

The Fourth Condition

“… properly speaking, an easement requires no more than sufferance on the part of the occupier of the servient tenement, …”

In Moncrieff v Jamieson (supra) at para 47, Lord Scott of Foscote said:

“the grant of a right that required some positive action to be undertaken by the owner of the servient land in order to enable the right to be enjoyed by the grantee could not, in my opinion, be a servitude.”

He then referred to a right to use a neighbour’s swimming pool as an example of such a right.

Overview

The Cross-appeal

“There is nothing vague or of excessive width in the present rights. They clearly extend to all recreational and sporting facilities on the estate, and to the gardens, and must in my judgment include facilities that were not there or planned in 1981, or which may have been significantly improved since then. To construe the rights as limited to the actual facilities which were on site or planned in 1981 is unrealistic and might inhibit the servient owner from introducing improvements or replacements or adding facilities which would be for everyone’s benefit. I say that because any alteration to the facilities, if the rights did not extend to the new or replacement facilities, might amount to a substantial interference with the claimants’ existing rights. That cannot have been intended on any sensible construction of the rights. Moreover, such a construction would allow the defendants to advantage from their own default or that of their predecessors, who filled the outdoor pool in before the defendants constructed a new one in the basement of the Mansion House. The point is perhaps academic as the rights under the 1981 Transfer expressly extend to the basement, where the pool now happens to be.”

LORD CARNWATH: (dissenting)

“… contemporary golf courses have sophisticated networks of landscaped, manicured and irrigated tees, bunkers and greens, punctuated by sheds and shelters, tarmacked paths, sand boxes, pro-shops and club houses.

76.       The difficulty posed by an easement of this modern kind of golf course, which we assume for this purpose was closer to the one that was opened at Broome Park Estate in mid-1981, is the large amount of maintenance required to keep it in what many would regard as a ‘playable’ condition. We are all familiar with the teams of groundsmen and greenkeepers that such courses need to employ to maintain them to the high standard that players frequently desire.”

However again he thought the problem not insuperable:

“… the factual findings of the courts below that some less attractive but still worthwhile use could be made of the facilities in those circumstances.” (para 71)

“A right to enjoy facilities being run by the servient owner is defined by the active choice and implementation of the servient owner. It chooses the location of the bunkers, the layout of the gardens from time to time, the temperature and depth of the water in the pool - no less than it chooses the menu in the restaurant, the range of equipment in the gym and the loudness of the music within it. There is no right in the dominant owner to exercise its right in any different, or any particular way. The scope of the right is defined by the active choices and implementation of the servient owner from time to time.”

This perhaps is a less strong point in respect of the swimming-pool, the physical characteristics of which are clearly defined, and unlikely to change. However, in respect of the golf-course it seems to me unanswerable.

“The enjoyment contemplated was the enjoyment of the vendors’ ornamental garden in its physical state as such - the right, that is to say, of walking on or over those parts provided for such purpose, that is, pathways and (subject to restrictions in the ordinary course in the interest of the grass) the lawns; to rest in or upon the seats or other places provided; and, if certain parts were set apart for particular recreations such as tennis or bowls, to use those parts for those purposes, subject again, in the ordinary course, to the provisions made for their regulation; but not to trample at will all over the park, to cut or pluck the flowers or shrubs, or to interfere in the laying out or upkeep of the park …” (p 168)

However, these matters seem to have been treated as no more than incidental to the enjoyment of the garden as a place for walking, rather than as here essential to the purpose of the grant. Further, the enjoyment was subject to the dominant owners’ obligation to contribute to the cost of maintenance, and there was no discussion of what might happen in the event of failure to maintain. The court was not faced, as in this case, with the commercially incoherent position that the dominant owner is under no obligation to operate and maintain the recreational facilities which are essential to the grant, but has no right to recover the costs if he does so.

“There is nothing vague or of excessive width in the present rights. They clearly extend to all recreational and sporting facilities on the estate, and to the gardens, and must in my judgment include facilities that were not there or planned in 1981, or which may have been significantly improved since then. To construe the rights as limited to the actual facilities which were on site or planned in 1981 is unrealistic and might inhibit the servient owner from introducing improvements or replacements or adding facilities which would be for everyone’s benefit …” (para 44)

“The question of whether a minor or de minimis extension to the land used by the existing or replacement facilities does not arise on the facts of this case. But we would be inclined to accept that such an incremental increase in the land used by the golf course or, say, a small extension to the existing land used by the swimming pool or to the run back used by the tennis courts, would be covered on the proper construction of the grant. A completely new facility on new ground would not be covered, but a replacement facility, even one that had been slightly extended beyond the ground used by the original facility, would be.” (para 44)