We all know the scenario – you get on well with the man who owns the shop next to your pub and over time he and his delivery drivers drive through your car park to get to the back of his shop. No formal arrangement is made but you don’t object because you get on well. After 20 years the shop owner is able to claim that he has a right of way over your car park. How can this be when you were just doing him a favour?
Acquiring a right by prescription
An easement (right of way) can be acquired by a person who has enjoyed the right uninterrupted for 20 years, without permission, force or stealth. If a landowner knows about the use of his land but does nothing about it this does not amount to his having given permission. Permission requires some positive act by the landowner. If a landowner grants a licence to someone to pass over his land then the licensee will not acquire a right by prescription because in this case he has permission to use the land.
A recent case has highlighted the need for landowners to be vigilant about who is using their land, with or without permission.
London Tara Hotel v Kensington Close Hotel Ltd
Facts
The Tara Hotel is next door to the Kensington Close Hotel. In 1973 the Tara hotel granted a licence to KCL the owner of KC hotel for its agents and business visitors to use a service road at the back of the Tara Hotel to access KC Hotel. The licence was personal to KCL who ceased trading in 1980. KC Hotel was sold several times after that, being renamed and having its signage changed. In 2007 Tara claimed that the current owners of KC Hotel had no right to use its service road and were trespassing on its land.
The Court found that the licence given to KCL had been a personal licence and had therefore terminated in 1980 – since then coaches and other vehicles had used the roadway without permission. It had been up to Tara, who had granted the original licence to KCL, to check every 18 years that KCL was still the owner and therefore the licence was still valid. The licence had never covered coaches so Tara should have realised that KC Hotel was not keeping within the terms of the licence anyway. KCL had therefore acquired a right of way by prescription over the Tara hotel’s service road.
A useful reminder
As a landowner you should not just stand by and allow your neighbours to use your land. This risks your neighbours acquiring a right to do so.
- You should make sure that you grant a neighbour a licence to use your land. This should prevent a prescriptive right arising.
- If you have granted a licence to a neighbour you should check that your land is being used in accordance with that licence. E.g. if you grant a licence for delivery vehicles to cross your land make sure that coaches and guests aren’t using it too.
- A licence may be personal to a user. Check that your licensee has not changed – the property may have been sold or there may have been an inter-group transfer which you may not be aware of.
All may not be lost
The existence, or alleged existence of prescriptive rights can be a particular headache for those looking to redevelop land because, on the face of it, you cannot interfere with any legal rights that affect it.
However, you shouldn’t just assume because somebody has been using your land for 20 years that nothing can be done about it. Whether or not a legal right has arisen will depend on:
- who has been using the land
- whether it was necessary (or merely convenient) for them to do so, and
- who controlled your land during the intervening years- was it a tenant for example?
Depending on the precise circumstances we may be able to help you defend a claim that a legal right has come into being. If you think the issues raised in this article might affect you then we would be happy to discuss your case with you.
