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Acquiring a right of way through long use

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A Court of Appeal decision in LONDON TARA HOTEL LTD v KENSINGTON CLOSE HOTEL LTD [2011] EWCA Civ 1356 confirmed that a right of way could be obtained through reliance on third parties use of the land.

Clients often approach me with queries regarding rights of access they believe they have over neighbouring land. Often these rights of access are not stated in their deeds but they believe that they should have a right because they have used it for so long. This can sometimes be the case. If a right of way has been used for over 20 years and without force, secrecy or permission (or to use the fancy latin phrase “nec vi, nec clam nec precario”) then a right of way could have been acquired. This is better known by the legal term ‘prescription’.

In the above case the owner of some land had granted a licence to the then owner of a neighbouring hotel to use part of their land as a means of access. This licence specifically excluded use by coaches. In 1980 the hotel was transferred by the licensee and the new owner continued to use the access but began to use it with coaches too. The hotel changed hands again in 1996 and again in 2002 and still use of the access continued.

The owner of the land argued that the use of the access was on licence. However, the Judge and then the Court of Appeal found that the licence must have come to an end when the hotel changed hands in 1980. The licence was personal to the present owner and could not be transferred to the next owner. The use of the right of way therefore started to run in 1980 giving 20 years use. The Court found that the hotel owners were entitled to rely on use by third party coach drivers in claiming the 20 years use. So the hotel had overcome the first hurdle and had the required period of use.

The hotel owner then had to demonstrate that the use was without secrecy, force or permission. The Court found that there had clearly been no secret of the use and the transfer of the land to another owner had not been concealed. Indeed one transfer of the land had been quite acrimonious and publicised. There was no dispute between the parties in respect of force and the Court held than as the licence had ended in 1980 there was no ongoing permission.

The Court therefore confirmed the right of way for the benefit of the hotel. The judgment is important to note for anyone claiming a right of access or for anyone who has allowed someone to access their land over a long period. All the owner of land needs to do is every 18 years or so, check who is accessing the land and give them express permission to gain access. This would then defeat any ‘prescriptive’ claim.

Disputes such as this are surprisingly common and I specialise in dealing with all aspects of right of way cases. If you need assistance or advice in relation to a case of this nature then please contact me on 01616 966 229 or grj@stephensons.co.uk.  

By neighbour disputes solicitor, Gareth Jones