Prescriptive rights

London Tara Hotel Ltd v Kensington Close Hotel Ltd [2011] EWCA Civ 1356

The case involved a dispute between two hotels over the use of a private road owned by the Claimant and prescriptive rights. Back in 1973 the Claimant had granted a licence to the then owner of the hotel. That allowed the use of the road for £1 if demanded. It ran from year to year unless terminated with 4 weeks notice. It was a personal licence granted to the then owner.

It doesn’t appear anyone had given the licence any thought until 2006. The hotel had changed hands 4 times since.

The Court of Appeal concluded that the licence was a personal licence and had ended in 1980 when the the owner of the hotel at the time ceased trading.

From then on coaches and other vehicles had used the roadway without permission.

As the use had continued for 20 years the defendant acquired the right by prescription.

‘This does not strike me a particularly unjust or surprising result. As already explained, before any prescriptive right can be acquired by use, there has to have been twenty years’ uninterrupted use “as of right”. Accordingly, where a landowner has granted a personal right to a licensee to pass over his land, all that is required of that landowner, if he wishes to ensure that a prescriptive right is not acquired, is to check every eighteen years or so that the licensee remains the owner of the putative dominant land. That is not onerous, and it chimes with what Romer LJ said in Union Lighterage Company v London Graving Dock Company [1902] 2 Ch 557, 571, namely that, in order to found a prescriptive claim, the use had to be “of such a character that an ordinary owner of land, diligent in the protection of his own interests, would have, or must be taken to have, a reasonable opportunity of becoming aware”.”

The licence had never permitted coaches so Tara should have realised that KC Hotel was not keeping within the terms of the licence anyway.

So what should be done to avoid this situation?

  • Grant a licence
  • Check that it is being used in accordance with the licence
  • Check that the licensee has not changed hands.

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