Easements, servitude and human flourishing theory.

Abstract

Human flourishing theory holds that the ownership of private property carries with it obligations to foster human flourishing—whether of individual neighbours or local communities. This Article examines two cases in the British law of easements and servitudes, where the judiciary expanded the scope of doctrines of land law so as to uphold the legal right of neighbours to use private land. In the case of Regency Villas Title Ltd. v. Diamond Resorts (Europe) Ltd. (hereinafter, “Regency Villas”), the UK Supreme Court (UKSC) upheld an easement held by timeshare owners to use the recreational facilities of the country club established in the grounds of the estate where they had purchased residences. Thus, for the first time in English law, the court recognized and upheld a pure easement of recreation. In the case of Home v Young (“Eyemouth”), the Scots Court of Session upheld the right of the inhabitants of the burgh of Eyemouth to use the well and drying green on the land of George Home. In doing so, the court broke free of the doctrine of servitudes that had for many years hindered the recognition of the rights of burgh inhabitants over private land and created a new doctrine—that of community rights. This Article argues that key developments in the doctrines of easements and servitudes occurred in these cases because the judges applied legal reasoning that exemplifies Professor Gregory Alexander’s human flourishing theory. In both the English case of Regency Villas and the Scots case of Eyemouth, the judges shifted the focus of their enquiry from the land itself to the people living on the land, their needs and the uses to which they put the land to fulfill those needs. This shift of judicial focus to human need and the role of property in fulfilling those needs resulted in common law developments that in Scotland broadened the category of people who could claim rights of use over a neighbour’s land under a new doctrine of ‘community right’ and in England broadened the nature of rights that can be claimed as an easement. The ‘human flourishing reasoning’ employed by the judges in these cases enabled these developments.