When is a right of way not a right of way?

Or rather, when you can make a right of way without having a right of way? If you have been using someone else's land without force, secrecy or permission for a period of 20 years you can acquire a right of way by prescription. This is particularly useful when you've always used a certain means of access, but have no way to ensure that this appears on the deeds to your property.

So, an example of this in practice. If you live in house that has no direct path from your drive to the road you may use a path or track to get your car out. You probably don't have express permission to do so but, if you have been for at least 20 years, you may be able to claim a prescriptive right of way.

If you happen to own that track, you might wish to make sure that a right of way is not acquired by prescription. The best way to do this is to grant the person (with the car) a license, permitting use of the land under certain terms and conditions. If they have a license then they cannot claim a prescriptive right of way.

However, beware… if you do take this route you need to keep an eye on who is using your land. A recent case highlights the importance of this.

In 1973, the owners of the London Tara Hotel granted a licence to Kensington Close Limited (KCL). KCL were the owners of the nearby Kensington Close Hotel (KCH). The licence allowed KCL to get access to and from KCH using a service road. The license allowed them to get access either with or without vehicles, but use by residents and visitors was expressly excluded from the terms of the license. 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."

In 1980 KCH was sold to a new owner 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. Importantly, the service road had also been routinely used by coaches to bring guests to the hotel.

In 2007, the owners of the London Tara Hotel sought an injunction to prevent KCHL from using the service road. They stated that KCHL had no rights of access over the service road and that use of the service road constituted a trespass. 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.

So, according to the judge, how might the owners of the London Tara Hotel ensured that the agreement had stayed as a licence and avoided this costly dispute?

1. The 1973 licence was set out to allow for a payment of £1 a year. If the owners had demanded this payment from the management of KCH (irrespective of any change of ownership), that would have established an implied licence, even if the express licence had lapsed.
2. The owners could have checked whether there had been a change in the ownership of KCH, prior to every 20 years. If their enquiries had revealed a change of ownership, they could have taken steps to put a new licence in place.