Published on February 8th, 2011 | by Dean Carr
Acquisition of right of way following expiry of personal licence
London Tara Hotel Limited v Kensington Close Hotel Limited  EWHC 2749 (Ch)
The Tara Hotel and Kensington Close Hotel were next door to one another. For many years Kensington Close had made use of a private service road on Tara’s land. The use had initially been pursuant to a personal licence granted in 1973. That licence had expired in 1980 when ownership of Kensington Close had changed hands although use of the road had continued. This was the case until 2007 when Tara asserted that Kensington Close had no rights over the road and sought an injunction preventing them from using it. Kensington Close argued that it had acquired a right to use the road by long user.
Tara argued that use of the road had been by way of implied licence following the expiry of the written licence and, therefore, no rights had arisen. The court disagreed and found that Kensington Close did have the benefit of a right of way. Kensington Close had used the road openly since expiry of the licence and that use was “as of right.” The court also rejected the suggestion that the use had been secretive (and therefore not capable of giving rise to a prescriptive right) because Tara had been unaware of the change in ownership of the hotel which had bought the licence to an end. A change in ownership was reasonably foreseeable and Tara could have ascertained the true situation if it had monitored it more closely. Accordingly Kensington Close had acquired a right to use the road after 20 years use.
Source : Lexology.com