A new type of easement

An easement is a right that one party has over the land of another. There are certain requirements that must be met before an easement can be created.

There must be a piece of land which benefits from the easement and another piece of land which takes the burden of the easement. The easement must be for the better enjoyment of the benefiting land rather than just for the personal enjoyment of an individual. Both pieces of land must be owned by different people and the last requirement is that the easement in question must be capable of forming the subject matter of a grant. This means that the right itself must be certain and the courts must be willing to recognise the right as an easement.

It has often been said that the list of rights that is capable of being an easement is not closed. This means that is possible for new rights over land to be created.

The Supreme Court has recently upheld a new type of easement. However, the decision of the court has caused some controversy.

The case involved a timeshare development. The original development included an owner's club. Timeshare owners had the right to use such facilities as a swimming pool, golf course, squash courts and tennis courts on the estate.

A second development was subsequently built adjacent to the original development and sporting facilities were built. The question arose as to whether the original timeshare owners had the right to use the sporting and recreational facilities which had been built on the new development.

The original timeshare owners argued that the recreational rights granted to them were legal easements and were thus binding. To the surprise of many, the Supreme Court held that the recreational rights were capable of amounting to an easement.

Whilst the decision is specific to its own facts, it does demonstrate that the courts are willing to accept new types of easement. In the view of many, the right to use recreational facilities are something which benefit an individual rather than the land itself.

If you are thinking about granting a right to an adjoining landowner, you should obtain specialist legal advice to ensure that any rights and obligations are properly drafted. Many rights carry with them the burden of maintenance and payment and these issues should be carefully considered and drafted prior to any rights being exercised.

If you would like to discuss this or any property related issue, contact us.