Have you had your 18 year Prescription check?

06-12-2011 12:09

In the recent case of London Tara Hotel Ltd v Kensington Close Hotel Ltd, the Court of appeal has confirmed the use of prescriptive rights to acquire rights of way over neighbouring land.

Prescriptive rights e.g. a right of way, can be obtained over land owned by others if the right has been used for at least 20 years. For a right to exist, the use must not be by force, must not be used in secret and the user must not have permission.

The case involved one hotel, The Kensington Close Hotel Limited (KCH) using a private roadway which belonged to the neighbouring hotel the Tara Hotel. In 1973 the owner of the Tara Hotel granted a formal licence to the then owner of the KCH which entitled the agents and visitors of the KCH to use the private roadway to access the KCH with or without vehicles. A payment of £1.00 per year was payable (if demanded by the Tara Hotel) under the licence. After 1980 the KCH was transferred to several different owners and eventually to the defendants in this case in 2002.

In 2007 the Tara Hotel claimed that KCH was trespassing on its land due to use of the roadway.

The High Court (and the Court of Appeal) applied the principles of prescription explained above. Presumably, KCH were not using a mixture of clever distractions or smoke and mirrors to secretly use the roadway without Tara Hotel knowing and it is doubtful that KCH were forcing their vehicles and coaches down the roadway despite Tara Hotels efforts to stop them, therefore the only question was over whether the roadway was used with the permission of the owner.  It was decided that as a result of the transfers and various name changes of the KCH which started in 1980 the licence to use the private roadway had come to an end and no permission existed. If Tara Hotel thought that the licence was still in existence they could have claimed the payment of £1.00 per year, which would have helped with their argument that an implied licence was in place.

In light of this case, it is recommended that if an owner of land grants a personal licence for another person to use their land, the owner should check every 18 years or so that the ownership of the land benefitting from the licence has not changed.

If you would like any more information on this topic please contact Amanda O’Mahony: amanda.omahony@spw-law.co.uk

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