11 May 2017 #Commercial Real Estate
The right to do something on someone else’s land (such as use a track or lay pipes) in perpetuity appears to be a pretty simple concept. In practice, what the law calls “easements” are more complex to define. A recent case has made the definition of what can constitute an easement wider.
Starting with brass tacks: what is an easement? An easement is a right which benefits a piece of land (called the “dominant land”) which is enjoyed over another piece of land owned by someone else (the “servient land”). Easements are rights which exist for ever (i.e., in perpetuity) or are granted for a term certain (e.g., in a lease) and are not rights which are merely personal; they “run with the land”.
Usually, the easement is positive – it allows the owner of the dominant land to “do something” on the servient land, but it can be negative – e.g., preventing the owner of the servient land with interfering with a right to light enjoyed by the dominant land.
Because easements run with the land and last in perpetuity, the law restricts what classes of right can constitute an easement. There are, therefore, fairly narrowly defined classes of easement – most usually these are:
There are classes of right which cannot constitute an easement. These include:
It is the last class of right, that of recreation, which was the subject of a recent case, Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd (2017). Rights were granted in a transfer of some timeshare accommodation “to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities”.
The question in the case was whether the rights were anything more than merely personal rights; if they were personal rights, they would have expired, since neither of the original parties to the transfer owned the dominant or servient land.
The trial judge decided that the rights enhanced the enjoyment of the timeshare units and were therefore easements. The case went to the Court of Appeal.
The Court of Appeal decided:
There is, therefore, now the possibility that rights to use leisure facilities granted in a lease or by a transfer or deed can be the subject of easements (and therefore last in perpetuity and run with the land) in certain circumstances. This could have the effect of constraining the owners of leisure facilities when it comes to thinking about redevelopment. It is necessary to consider carefully the long-term ramifications of granting these type of rights.
If you would like advice on easements or any of the matters raised in this article, please contact Rachel Krol.