Prescriptive Rights of Way

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It is important for any landowner to be aware of how their land is being used in order to avoid the risk of other parties acquiring rights over their property. If rights are acquired, then the landowner’s use and ownership of the land will be subject to that other party’s rights. This could greatly impact on any proposed development.

 

There are various ways in which rights of way over land can be created, including by long use, called ‘prescription’. In November 2010, the High Court 1  considered the circumstances in which such a prescriptive right can be acquired.

 

The case involved a rights of way dispute between the owners of two adjoining hotels. In 1973, the owners of the Tara Hotel (“Tara”) granted a licence to the original owner (“X”) of the Kensington Hotel in relation to the ring road around the Tara Hotel (“Ring Road”). The licence was personal to X and entitled its agents and business visitors (but not guests) to use the Ring Road to access the Kensington Hotel, with or without vehicles. The licence provided for X to pay £1 a year to Tara (if demanded). X ceased trading in 1978 and the Kensington Hotel was transferred several times until 1996 when the hotel was transferred to Posthouses Limited and was renamed the Posthouse Kensington. The defendant company (“KH”) acquired the Kensington Hotel in 2002.

 

In 2007, Tara claimed KH was trespassing on its land. The court had to determine whether KH was entitled to an easement by prescription in the form of a right of way over the Ring Road for all vehicles after using it for more than 20 years. Tara argued that KH's use was by permission as it was a continuation of the 1973 licence; rights of way cannot be acquired by long user if the use is by permission. Tara stated that there was nothing to suggest that the owner of Kensington Hotel had changed and therefore Tara had no reason to object to the continued use.  KH argued that it had acquired a right to use the Ring Road by prescription, Tara having taken no steps to prevent it using the Ring Road before now.

 

The court found that KH had acquired a prescriptive right of way over the Ring Road. The 1973 licence was personal to X and ended when the hotel was transferred. If Tara had been concerned to protect the permissive nature of the use, they should have demanded the annual £1 payment. It was also found that KH’s use of the Ring Road was open and Tara should have been aware that the Kensington Hotel had been transferred during the 20 year period. The use of the Ring Road was therefore not with permission or by secrecy; it was as of right.

 

The case is a useful reminder that:


• landowners who grant a licence to use land should check that the land is being used in accordance with the terms of the licence;
• where the licence has ended or there has been a change of parties, landowners should take steps to ensure that they have a documented position with the party actually using their land;
• landowners who have not granted a licence should check that their land is not being used by others.

 


If landowners fail to take the appropriate action they run the risk that others might acquire prescriptive rights.

 

 

Natalie Kirkman
 
Cripps Harries Hall LLP

December 2010

 

 

1 London Tara Hotel Ltd v Kensington Close Hotel Ltd [2010] EWHC 2749