Facts
In 1855, the owners of Ellenborough Park in Weston-super-Mare sold building plots around it. Each conveyance granted the purchaser, and those deriving title from them, the full enjoyment of the park as a pleasure ground, subject to contributing to its upkeep. The owners covenanted to keep the park as an ornamental pleasure ground.
The question of whether the houses' owners had legal rights over the park arose in the 1950s, when it became relevant to compensation for the park's requisition during the Second World War.
Issue
Was the right to use the park a valid easement, or merely a personal right, or a right of recreation without utility, which the law wouldn't recognise as an easement?
Decision
The Court of Appeal held that the right was a valid legal easement. Lord Evershed MR gave the judgment of the court.
Reasoning
The court adopted the four characteristics of an easement set out in Cheshire's Modern Real Property:
- There must be a dominant and a servient tenement. Here, the houses were the dominant land and the park was the servient land.
- The easement must accommodate the dominant tenement. It must benefit the land itself, not just its owner personally. The right to use the park as a communal garden was connected to the normal enjoyment of the houses as homes, like a garden would be. It wasn't just a personal advantage, like a right to use a sports ground unconnected with the land.
- The dominant and servient owners must be different persons. They were.
- The right must be capable of forming the subject matter of a grant. It must be sufficiently definite, there must be a capable grantor and grantee, and the right must be within the general nature of rights recognised as easements. The court held that a right to use a garden was sufficiently definite and was more than a mere right to wander at large (a jus spatiandi).
Why it matters
Re Ellenborough Park is the starting point for any question about whether a right can be an easement. Its four characteristics are used in every case.
The fourth characteristic has received the most attention:
- A right that gives the dominant owner exclusive possession or ousts the servient owner can't be an easement (Copeland v Greenhalf [1952] Ch 488; Batchelor v Marlow [2001] EWCA Civ 1051), although the test was discussed in Moncrieff v Jamieson [2007] UKHL 42.
- In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57, the Supreme Court confirmed that purely recreational and sporting rights, including use of a golf course and swimming pool, can be easements, applying Re Ellenborough Park.
How it comes up in exams
Easement problems usually ask three questions in order:
- Can the right be an easement? Apply the four Re Ellenborough Park characteristics.
- Has it been created? Look for express grant or reservation, implied grant (necessity, common intention, Wheeldon v Burrows (1879) 12 Ch D 31, or s 62 of the Law of Property Act 1925), or prescription.
- Is it legal or equitable, and does it bind the current owner of the servient land? Consider s 1(2)(a) of the Law of Property Act 1925 and registration under the Land Registration Act 2002.
Frequently asked questions
What are the four characteristics of an easement?
There must be a dominant and a servient tenement; the easement must accommodate the dominant tenement; the dominant and servient tenements must be owned or occupied by different persons; and the right must be capable of forming the subject matter of a grant.
Why was the right to use the park an easement?
It benefited the houses around the park as a communal garden, adding to their use and enjoyment as homes, much like a private garden. It was sufficiently definite and wasn't a mere right to wander at large.
Can recreational rights be easements?
Yes. In Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57, the Supreme Court held that rights to use a golf course, swimming pool and other leisure facilities could be easements.
Can a right to park be an easement?
It can, as long as it doesn't deprive the servient owner of reasonable use of their land. In Moncrieff v Jamieson [2007] UKHL 42, the House of Lords recognised a right to park as ancillary to a right of way.