Opinion

Property legislation update

25th April 2019

Property legislation update

Specialist lawyer with Higgs & Sons, Nyree Applegarth, takes a look at some of the recent cases shaping property litigation law.

 

New easement created

Easements to cross another’s land, park on land and run services over or across land are commonplace rights in UK property law.

But in a surprising decision, the Supreme Court upheld a new type of easement, namely the right to use recreational facilities, that use something such as a golf course or tennis court.

Regency Villas –v- Diamond Resorts [2018] involved a timeshare development at which timeshare owners had the right to use an owners’ club, a swimming pool and other facilities. When a second development was built, the timeshare owners argued that they had the right to use the recreational facilities at the new development. They sought to argue that the recreational rights granted to them were legal easements and were therefore binding. 

The most controversial aspect of the case was consideration by the Court of whether or not the easement accommodated the benefitting land and whether the easement was for the better enjoyment of the land rather than just for the enjoyment of an individual. 

At first glance recreational rights would fail this test, but the Supreme Court held that if such rights genuinely accommodated the land then they could be easements.  In this case, the benefiting land was itself being used for recreational purposes as were the attached recreational facilities on the rest of the development, and therefore offered a practical benefit to accommodate the original timeshare properties.

There was a strong dissenting Judgment from one of the Supreme Court Judges but at present the Supreme Court has created a new species of easement and only time will tell whether this opens the way for additional categories of easements to be developed.

 

Obligations to inspect trees

Until recently, there was no certainty around how frequently a landowner should inspect trees in order to avoid claims for negligence or breach of duty.

Following the decision in Whitley Parish Council –v- Kavanagh [2018], the Court of Appeal has given some guidance in this context, albeit the case related to a local authority which had trees abutting a highway. 

The local authority had introduced a fixed three year period for inspections but the tree surgeon who inspected for them said that his reports were only valid for two year.  A particular tree in question fell down shortly before the expiry of the three year period, and if it had been inspected every two years the decay would have been discovered before the accident. 

The Court of Appeal therefore determined that the tree ought to have been inspected at least every two years and therefore the local authority was in breach of duty.

 

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