Most easements are acquired by express reservation or grant. However, it is also possible to acquire prescriptive rights based on uninterrupted use of land over a period of not less than 20 years. To qualify, the use made of the servient land must have been enjoyed “as of right”. This means that the rights asserted must have been exercised openly, without force and without permission from the servient landowner. Such rights are then presumed to have been lawfully granted at some time in the past.
London Tara Hotel Ltd v Kensington Close Hotel Ltd [2010] EWHC 2749 (Ch); [2010] PLSCS 281 highlights the importance of continuous positive management to prevent adjoining landowners from acquiring easements by prescription. The owners of the Kensington Hotel had, for many years, used a private service road belonging to the neighbouring London Tara Hotel. The original use was authorised by a licence granted in 1973, which was personal to a previous proprietor and was therefore terminated by a subsequent change in the ownership of the Kensington Hotel.
Most easements are acquired by express reservation or grant. However, it is also possible to acquire prescriptive rights based on uninterrupted use of land over a period of not less than 20 years. To qualify, the use made of the servient land must have been enjoyed “as of right”. This means that the rights asserted must have been exercised openly, without force and without permission from the servient landowner. Such rights are then presumed to have been lawfully granted at some time in the past.
London Tara Hotel Ltd v Kensington Close Hotel Ltd [2010] EWHC 2749 (Ch); [2010] PLSCS 281 highlights the importance of continuous positive management to prevent adjoining landowners from acquiring easements by prescription. The owners of the Kensington Hotel had, for many years, used a private service road belonging to the neighbouring London Tara Hotel. The original use was authorised by a licence granted in 1973, which was personal to a previous proprietor and was therefore terminated by a subsequent change in the ownership of the Kensington Hotel.
Unfortunately, the owner of the London Tara Hotel allowed the use to continue without making any enquiries concerning changes of ownership, which had been well-publicised in the industry, and without ever demanding the licence fee payable for the use of the service road. The consequences of its inaction were to prove fatal. The court ruled that the Kensington Hotel had acquired prescriptive rights of way over the service road, even though the change(s) in the corporate ownership of the Kensington Hotel may not have been obvious or on display.
The owner of the London Tara Hotel argued that the onus should be on each new owner to apply for a fresh licence to avoid becoming a trespasser, but the judge disagreed. He ruled that if this were the case, no trespasser would ever be able to acquire prescriptive rights over land.
The judge accepted that user will not qualify as “user as of right” if both parties share a common understanding that such user is permissive. However, this was not the case here. Even if the owner of the Kensington Hotel had mistakenly believed that it was exerting rights conferred by a licence, this would not have deprived the user of its character as “user as of right”.
The judge rejected arguments that his decision would cause hardship to the owner of the London Tara Hotel. It could have asked the managers of the Kensington Hotel to confirm the identity of the company that owned the land once every 20 years – and then taken any action needed to safeguard its interests. Alternatively, it could have requested the Kensington Hotel to pay the annual licence fee to preserve the permissive character of the use of the service road.
It is not clear why the owner of the London Tara Hotel never required payment of the annual licence fee. Perhaps it decided that a fee of £1 was simply too trifling to collect. Unfortunately, in this case, for the want of £1, unencumbered ownership of a service road, forming part of a valuable site in London, has been lost.
Allyson Colby is a property law consultant
