The Supreme Court has handed down its judgments in the case of Regency Villas Title Ltd and others v Diamond Resorts (Europe) Ltd and others,in which the Respondents/Cross-Appellants claimed recreational easements. The well-known leading case of In re Ellenborough Park  Ch 131 was revisited and affirmed. The Justices dismissed the Appellants/Cross-Respondents’ appeal and granted the Respondents/Cross-Appellants’ cross-appeal by a majority 4:1 ruling (Lord Carnwath dissenting). Katie Longstaff appeared as second junior counsel for the successful Respondents/Cross-Appellants.
Timeshare owners claimed that recreational easements had been granted as part of a transfer in 1981, such that the timeshare owners and occupiers of Regency Villas had free use of a neighbouring championship golf course and swimming pool, as well as other facilities.
At trial the late Judge Purle KC found that the 1981 transfer created easements to use the gardens and sporting and recreational facilities on the Appellants’ land (the servient tenement) free of charge, even where such facilities had not been built at the time of the transfer.
Whilst the Court of Appeal upheld the majority of the easements identified by the trial judge, it found that the transfer only granted rights over those facilities that existed at the time of the transfer, therefore the Respondents did not have free use of the indoor swimming pool (which had been built in substitution of a filled in outdoor swimming pool) as a result. The Appellants appealed the Court of Appeal’s decision in respect of easements granted and the Respondents cross-appealed the decision limiting their rights in respect of the indoor swimming pool.