A right of way can be acquired over another person’s land by prescription if it can be shown that the land has been used “as of right” and without force, secrecy or permission for a period of 20 years.
This can be useful where the owners of a property have always used a certain means of access but no express right of way appears in the deeds. A common example is the use by the owners of terraced houses of a passageway leading from their back yard to the road. Often there is no express right to use such a passageway but, if the use has been occurring for at least 20 years, the owner may be able to claim a prescriptive right of way.
The owner of the affected land may want to ensure that a right of way is not acquired by prescription. One way to achieve this is to grant a licence permitting use of the land. A licensee cannot claim a prescriptive right of way. But a licensor needs to keep track of who is using his land, as highlighted by a recent case.
In 1973, the owners of the London Tara Hotel granted a licence to Kensington Close Limited (KCL), the owners of the neighbouring Kensington Close Hotel (KCH). The licence allowed KCL to use a service road for access to and egress from KCH. Access could be with or without vehicles but use by residents and visitors was expressly excluded. The licence was for one year, and thereafter from year to year unless determined for breach or by four weeks’ notice. KCL was required to pay £1 a year "if demanded as an acknowledgment that the enjoyment of the said way is under this Agreement and not otherwise."
KCH was sold to a new owner in 1980 and, by 2007, was owned by Kensington Close Hotel Limited (KCHL). Use of the service road had continued, even though the licence had been granted to, and was personal to, KCL. Furthermore, the service road was routinely used by coaches bringing guests to the hotel whereas the licence had prohibited use by residents and visitors.
In 2007, the owners of the London Tara Hotel asserted that KCHL had no rights of access over the service road and that use of the service road constituted a trespass. They sought an injunction to prevent further trespassing.
The judge found that KCHL had acquired a right of way over the service road on the basis of 20 years’ use since 1980. The judge also found that the right of way was for coaches as well as commercial vehicles.
The judge suggested two ways in which the owners of the London Tara Hotel could have ensured that the arrangements remained by way of licence.
- Firstly, the 1973 licence provided for payment of £1 a year. If the owners had demanded this payment from the management of KCH, that would have established an implied licence if the express licence had lapsed.
- Secondly, the owners could have checked at 20 year intervals whether there had been a change in the ownership of KCH. If their enquiries had revealed a change of ownership, they could have taken steps to put a new licence in place.