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Types of easement

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Types of easement

This page contains cases where the court considered whether or not an easement for a particular use was capable of constituting an easement. See also the page dealing with Parking.


Gardens

Mulvaney v Gough [2002] EWCA Civ 1078

An easement giving a right to use a communal garden is capable of being acquired by prescription or under s62. The fact that it was not as easy to define the extent of the easement as it would have been in the case of an express grant did not mean that an easement could not be found to be in existence. A declaration was granted stating that the easement was for "recreational and amenity purposes". The court made a declaration that:
    The Claimant is entitled to a right to use the blue land as a communal garden for recreational and amenity purposes.
That declaration would not necessarily prevent all works on the land. The declaration would require the owners of the land to carry out any such works
    .. in a way that will substantially maintain its character as a communal garden for recreational and amenity purposes. And this will require them to demonstrate that any proposed work would maintain that character, and, in practice, the work is likely to require prior consultation, and, preferably agreement, if it is not to amount to a significant interference with the respondents rights. (Latham LJ at paras 26 and 27).


Recreational facilities

Regency Villas Title Limited v Diamond Resorts (Europe) Limited
[2017] EWCA Civ 238

Summary

Rights granted to use the tennis courts, squash courts, putting green, croquet lawn and golf course could constitute easements. However, a more modern approach to "physical exercise" easements did not really apply to recreational indoor games such as snooker or watching television.

More detail

The court sought to summarise the principles applicable to determining whether easements of this type can exist under English law. It noted that the views of society as to what is mere recreation or amusement can change and that most people in the UK now regard physical exercise as an essential or at least desirable part of their daily routines, rather than being a mere recreation or amusement. The Court said that it was crucial that an easement should give the dominant tenement a "right of utility and benefit" and an easement should not be held as invalid for being a "mere recreation or amusement" because the form of physical exercise envisaged is a game or sport.

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