CASE NOTES
there was a real sense of the facilities being used by the dominant tenement by virtue of the fact that the Defendants were actually counterclaiming for use of the recreational facilities after 2012. Therefore, Lord Briggs’ reasoning is justifiable and should be commended. However, uncertainties remain regarding the extent of the ouster principle. One can argue that Lord Briggs in explicitly avoiding the question of extent has dodged the bullet and has left loopholes in the law. Bevan rebuts that there are 3 grounds to resisting this ‘overly hysterical reaction’.41 Firstly, recreational purposes are still governed by a contextual assessment, governed by a ‘factual matrix’.42 Secondly, it remains unlikely that recreational easements can arise from implied creation.43 Lastly, the ‘final brake’ pertains to the Law Commission’s scheme to discharge easements, extending the powers under S84, LPA 1925 to easements.44 This mirrors the effect of S105A of the Land Titles Act in Singapore which gives the Court the power to vary or extinguish easements.45 As such, Bevan’s argument conclusively lays to rest any allegations regarding the introduction of uncertainty. In this day and age with new and emerging uses of land, it will only be fatalistic to cling onto the ‘innately conservative tradition’46 of property law. In Singapore, in Muthukumaran s/o Varthan,47 it was established that the law in Re Ellenborough Park as regards the constituents of an easement is trite law,48 affirmed and applied in Fragrance Realty49 and Botanica Pte.50 While there has been 41 Chris Bevan, ‘Opening Pandora’s Box? Recreation pure and simple: easements in the Supreme Court Regency Villas Title Ltd v Diamond Resorts Europe Ltd’, Conv 2019,1 55-70 at p. 68. 42 ibid. at p.68. 43 ibid. at p. 69. 44 ibid at p.69. 45 S105A, Land Titles Act (Chapter 157). 46 Kevin Gray and Susan Francis Gray (n.2) at p. 240. 47 Muthukumaran s/o Varthan and another v Kwong Kai Chung and others [2015] SGCA 69. 48 ibid. at [40]. 49 Fragrance Realty Pte Ltd v Rangoon Investment Pte Ltd [2013] 2 SLR 1007 at [30]. 50 Botanica Pte Ltd v MCST Plan No 2040 [2012] 3 SLR
no case in Singaporean jurisdiction that aligns itself with Regency, it is humbly submitted that the Singaporean courts will likely rule in context since Re Ellenborough Park prohibited recreational easements only to avoid conferring capricious and personal benefits and promote clarity. In this regard, ‘mere recreation and amusement’51 in the absence of ‘utility and benefit’52 will not be recognised. If the issue is determining when do acts fall into the category of ‘ousting’ the servient tenement’s use of land, Lord Briggs reminds us that the ‘intention’ test is crucial. If parties clearly intended for the use of land to be in such a way, there can be no claim for ‘ousting’. This is an objective test inferred from the conduct of parties53 and should pose no problems if applied in principled fashion. Therefore, this judgment is welcome in its flexible approach. The law has not perambulated onto precarious land but in widening its scope of reasoning, eases the minds of dominant tenements while preventing vexatious claims. While one may be tempted to lapse into conservative and outmoded reasoning, this will only prove fatal. With emerging methods of land use, the increasing prominence of timeshare apartments is not unexpected.54 As such, the law must not remain mired in a traditionalist mindset but embrace change where necessary. In this respect, Lord Briggs’ perspicacious reasoning and principled judgment in Regency deserves commendation. Having said that, in Singapore, it remains to be seen whether the Courts will accept and apply the reasoning in Regency. This author humbly concludes there is no reason not to.
476 at [46(a)]. 51 Ellenborough Park at p.142 52 ibid. 53 Regency at [70]. 54 Rachel Gordon, The Guardian, 20 July 2001, ‘Timeshares and holiday clubs explained’ < https:// w w w. t h e g u a r d i a n . c o m / m o n e y / 2 0 0 1 / j u l / 2 0 / t r ave l . budgetingforyourholiday1/> Accessed 20th June 2019
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