Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Judge Purle |
| Judgment Date | 07 December 2015 |
| Neutral Citation | [2015] EWHC 3564 (Ch) |
| Docket Number | Claim No A30BM219 |
| Court | Chancery Division |
| Date | 07 December 2015 |
[2015] EWHC 3564 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Priory Courts
33 Bull Street
Birmingham B4 6DS
His Honour Judge Purle QC
Claim No A30BM219
Mr John Randall QC and Mr Marc Brown instructed by Shakespeare Martineau LLP appeared for the Claimants
Mr Andrew Latimer instructed by Pannone Corporate LLP appeared on behalf of the Defendants
Hearing dates: 6–10 July 2015
JUDGMENT (revised)
Judge Purle:
The First Claimant ("the Company") is the freehold proprietor of land and buildings known as Elham House, Canterbury ("the timeshare land"), which is registered at HM Land Registry under Title No K854001 (formerly K284281). The reason for the change of number is that the Land Certificate bearing the original number was lost, and replaced by HM Land Registry with a new number for security reasons.
Twenty six timeshare units known as the Regency Villas have been built on the timeshare land. Strictly, there are two apartments in the former Elham House, and twenty four villas in the grounds. They each accommodate up to six people.
This case concerns what are alleged to be easements enjoyed by timeshare owners at Regency Villas. The second to fifth Claimants ("the individual claimants") bring these proceedings as such owners on their own behalf and on behalf of the members of the Regency Villas Owners' Club ("RVOC") an unincorporated association set up to look after and represent the interests of the timeshare owners.
Each owner has the exclusive right to occupy a particular unit or units at specified periods each year, usually one or two weeks. The owner is issued with a membership or owners certificate by RVOC, and is obliged to pay charges to RVOC for the upkeep and maintenance of the timeshare land. The owner may transfer his or her right to occupy the unit in his or her place, either by private arrangement or through an exchange scheme which is common within the timeshare industry.
The Company holds the land as nominee for John Hughes and Holiday Owners' Services Limited ("HOSL") who are in turn trustees for the members of RVOC from time to time. Thus the Company effectively holds the land on trust for (ultimately) the timeshare owners.
The trust was established by a Trust Deed of 12 November 1981 ("the 1981 Trust Deed") made by Barclays Bank Trust Company Limited ("Barclays") to whom the timeshare land was transferred on the same date, which declared a trust for the members of RVOC.
Trustees having been replaced or having retired over time, the current trustees are John Hughes and HOSL (sometimes erroneously referred to in documents as Holiday Ownership Services Limited, an obvious mistake for HOSL).
The timeshare land was subsequently transferred to a nominee company, R.V.O.C. Limited, in 1994, and then to the Company, also as nominee, in 2012.
A Deed of Retirement and Appointment of 27 June 2012, made between RVOC, the Company, John Hughes, HOSL and two trust companies (defined as "the Retiring Trustees"), recited that the timeshare land was the subject of the trust constituted by the 1981 Trust Deed and was vested in the Company as nominee for the Retiring Trustees. By the body of the Deed, John Hughes and HOSL were appointed as new trustees and the Company declared that it held the timeshare land "as nominee" for John Hughes and HOSL.
This was followed by a transfer to the Company of the timeshare land by R.V.O.C. Limited dated 30 June 2012.
The point is taken on the Defendants' side that as the 30 June transfer post-dated the declaration of nomineeship, that declaration is ineffective. There is nothing in this point. The timeshare land was already subject to a trust for (ultimately) the RVOC members and the Company would take subject to that trust, as the antecedent Deed of 27 June recognised. Further, the Company is estopped from denying the trust or its nominee status. Both are recited in the 27 June Deed, as well as repeated in the body, and the 30 June Transfer fed the estoppel.
The First Defendant is the freehold proprietor of Broome Park Estate ("the estate"), which is registered at HM Land Registry under Title Nos K496390 and K496391. The estate is adjacent to the land, and is the servient tenement in respect of the claimed easements. The land and the estate were in the common ownership of Gulf Investments Limited ("Gulf") between November 1980 and November 1981. The timeshare land was part of Broome Park, often described as the Walled Garden.
Gulf purchased the estate, not then including the timeshare land, in November 1979. The timeshare land was purchased by Gulf in November 1980.
There are and have at all material times been sporting and leisure facilities on the estate such as a tennis court, swimming pool, gardens, golf course and squash courts. There is (nowadays) an indoor swimming pool with leisure suite (there was formerly an outdoor pool, but this was filled in at a time when the estate became badly run down). There have been many changes and improvements to the facilities over the years. This is hardly surprising, as the estate is run commercially with a view to profit and the recreational facilities are open to members of the public, so might be expected to change with the fluctuating demands and rising expectations of the public.
A Mansion House on the estate incorporates some of the leisure facilities. A Kentish Times article from August 1983 suggests that the Mansion House was refurbished initially between January 1980 and April 1981, though it may not have opened until later that year.
The Second Defendant is the operator of the golf course and the leasehold proprietor of a 25-year lease ("the 1999 Lease") expiring in 2024 of the golf course, which is registered at HM Land Registry under Title No K803981. Prior to that lease it held a much longer lease, which it surrendered in 1999, of the whole estate.
The Defendants are members of the same group of companies and I shall hereafter refer to them without distinction.
Within the Mansion House eighteen residential timeshare units were created and a 35-year lease ("the 1980 Lease") was granted by Gulf (expiring recently) in August 1980 in favour of the timeshare owners of the eighteen units within the Mansion House. That lease included a grant of the right to use the various indoor and outdoor facilities, backed by a lessor's covenant to maintain those facilities. This particular development was a commercial success at the time, and was followed by the development of Regency Villas as timeshare units, for which planning permission was granted in June 1981, though the units were not completed until some time between July 1982 and June 1983.
For completeness, a further timeshare development took place within the estate in 2003 or thereabouts, resulting in fourteen timeshare lodges. There are thus fifty eight timeshare units in total (formerly forty four) sharing the various facilities, of which I am directly concerned with twenty six.
By a transfer ("the 1981 Transfer") dated 11 November 1981 between Gulf, as owner of both the timeshare land and the estate, and the Company's predecessor, Elham House Developments Limited ("Elham Developments") the land was transferred from Gulf to Elham Developments. That transfer can no longer be found but, upon registration of the transfer, the following entry was made in the property register of title K284281 (and remains there in respect of the new title number K854001):
"The land has the benefit of the following rights granted by a Transfer of the land in this title dated 11 November 1981 made between [Gulf] (Transferor) and [Elham Developments] (Transferee):-
"TOGETHER WITH firstly the right of way for the Transferee its successor in title its lessees and the occupiers from time to time of the property at all times with or without vehicles for all purposes in connection with the use and enjoyment of the property over and along the driveways and roadways (hereafter called "the roadways") shown coloured blue on the plan attached hereto.
AND Secondly all the right to the full and free passage of gas water soil electricity and any other services from and to the property in and through any pipes drains wires cables or other conducting media now in under or over the Transferee's [sic] adjoining land or constructed within 80 years of the date hereof.
AND thirdly the right for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities (hereafter called "the facilities") on the Transferor's adjoining estate".
It is the "thirdly" which matters in this case. Similar entries also appear in the charges registers of titles K496390, K496391 and K803981, noting that those titles (now the Defendants') are subject to the rights granted by the 1981 Transfer.
The Claimants say that they are entitled to use of the sporting and recreational facilities as they now exist free of charge. This is disputed by the Defendants.
The Defendants say, probably correctly, that at the time of the 1981 Transfer, construction of the Regency Villas had not begun. Nevertheless, the future development of the Regency Villas was certainly intended. Both Transferor and Transferee were members of the Gulf Group of...
To continue reading
Request your trial
-
Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another
...President Lord Kerr Lord Sumption Lord Carnwath Lord Briggs Supreme Court Michaelmas Term On appeals from: [2017] EWCA Civ 238 and [2015] EWHC 3564 (Ch) Appellants/Cross Respondents Tim Morshead Toby Watkin Andrew Latimer (Instructed by Pannone Corporate LLP (Manchester) and Osborne Clarke ......
-
Cayman Shores Development Ltd and Palm Sunshine Ltd v Registrar of Lands, Proprietors of Strata Plan No. 79 (Lion’S Court), Proprietors of Strata Plan No. 147 (Regent’S Court), Proprietors of Strata Plan No. 215 (King’S Court) and Britannia Proprietors
...Secs. Ltd., Grand Ct., Case No. 445/90, unreported, referred to. (35) Regency Villas Title Ltd. v. Diamond Resorts (Europe) Ltd., [2015] EWHC 3564 (Ch); [2016] 4 W.L.R. 61; on appeal, [2018] UKSC 57; [2019] A.C. 553; [2018] 3 W.L.R. 1603; [2019] 1 All E.R. 771, referred to. (36) Rho......
-
Cayman Shores Development Ltd v The Registrar of Lands
...being of eighteen timeshare apartments. The Walkers Defendants cited a passage from the judgment of HHJ Purle QC at first instance ( [2016] 4 WLR 61) where he said: “50. [Counsel] argues that this is really a case of joint possession which is on the wrong side of the line for easements. I ......
-
Table of Cases
...Ch 135, [2006] 3 WLR 1131, [2007] BLR 56 37, 302, 303, 307 Regency Villas Title Ltd & Ors v Diamond Resorts (Europe) Ltd & Anor [2015] EWHC 3564 (Ch), [2016] 1 P & CR DG19, [2015] All ER (D) 101 (Dec) 6 Regent Oil Co Ltd v JA Gregory (Hatch End) Ltd [1966] Ch 402, [1965] 3 WLR 1206, [1965] ......
-
Easements
...as a communal garden for recreational and amenity purposes. 22 Regency Villas Title Ltd & Ors v Diamond Resorts (Europe) Ltd & Anor [2015] EWHC 3564 (Ch) (HHJ Purle QC). Rights of recreation (consistently with Re Ellenborough Park [1956] Ch 131) can take effect as easements so long as they ......