LEGAL ADVICE: The Right To Play Golf


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Luke Patel

An easement is a specific legal right held over someone else’s land. Most commonly easements are encountered in the form of rights of way, rights to use utilities leading over neighbouring land, rights to light or perhaps rights to use a communal space such as a garden.

In the recent case of Regency v Diamond the Supreme Court was asked to rule whether an easement could also constitute the right to use the facilities of a neighbouring leisure centre. In 1967 a large country estate was split, with part (“the Regency Villas”) being sold off from the main retained part of the land (“the Park”). The Park was developed as a leisure complex and in the 1980s the Regency Villas land was developed into timeshare apartments and transferred to an associated company to run. That transfer included a grant of rights to the occupants of the Regency Villas to use the recreational facilities of the Park.

Over the time the Park declined due to lack of maintenance. For a time a voluntary contribution was made by the Regency Villas’ occupants towards its upkeep but when a dispute arose over this the Park attempted to prevent the Regency Villas occupants’ free use of the facilities leading to this case.

The decision the judges were asked to rule on was whether the rights granted to Regency Villas could constitute an easement that could be enforced in the courts. The right in this case was broader in its ambit than easements usually are, including services normally requiring the active participation of the Park (i.e. providing and running the leisure facilities) which caused the Court concern. However, there existed past cases confirming that the recreational or sporting rights over land can be the subject of an easement where the usual conditions are satisfied. These are:

there must be a “dominant and servient tenement” – two tracts of land, one of which is obligated to provide some convenience to the other;
the easement must accommodate the dominant tenement;
the two tracts must be owned by different entities; and
the right claimed must be capable of being the subject matter of the grant.

Despite reservations, the Supreme Court found that the Regency Villas occupants’ right was an enforceable easement.

The wording of the original grant in 1981 is also worth considering, as an example of what probably appeared at the time to be entirely innocent, yet which over time has had serious and negative consequences to the granting land, a problem that might have been avoided if the original grant had been set out in more detail and with more foresight at the outset.

If you are involved in any type of property dispute, the Property Litigation Team at Blacks Solicitors can assist. Please contact Luke Patel on 0113 227 9316 or by email at “LPatel@LawBlacks.com”

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