By S
07/12/2011

Nec vi, nec clam, nec precario

In London Tara Hotel Ltd. v Kensington Close Hotel Ltd [2011] EWCA Civ 1356 the dispute involved two hotels located in Kensington (the Kensington Chelsea Hotel (“KC Hotel”) and the Copthorne Tara Hotel (“Tara Hotel”)) and concerned a private road (owned by the Tara hotel) that passed between them.  In the High Court below the KC Hotel established that they and their predecessors had acquired a right of way by prescription (through the doctrine of lost modern grant) over the private road owing to the fact that the present owners and their predecessors had used the road for over 20 years nec vi, nec clam, nec precario or (for those of you who – like me –weren’t properly educated) not by force, nor secrecy, nor licence. The Tara Hotel appealed against this decision.

Facts

In 1973, the Tara Hotel granted the then owners of the KC Hotel (KCL) a personal licence to use the private road from year to year, so long as it was not used for coaches.

In 1978, the ownership of the KC Hotel changed hands and a new owner took charge. Despite this the new owners of the KC Hotel continued to use the private road as before and, as the licence had been personal to KCL, without permission. In the High Court below it was found that the Tara Hotel’s management were unlikely to have been aware of the fact that there had been a change of ownership in 1978, but would have been put on notice of a subsequent change of ownership in 1996 when the hotel was re-branded following a hostile takeover from the Granada group.

However, notwithstanding the above, as the licence was personal to KCL it must have lapsed in 1978 when the hotel changed ownership. In the absence of an implied licence – which the facts did not support as the Tara Hotel had not committed a positive act which could be construed as giving permission – it followed that the road had been used without force and without the permission of the Tara Hotel from 1978, i.e. over 20 years.

Nor could it be said that the use of the road had been secret; from 1980 vehicles supplying the KC Hotel were using the road regularly and it would have been obvious to the owners of the Tara Hotel that the road was being used.

The Court of Appeal

Before the Court of Appeal Tara Hotel argued that as they were unaware of the change of ownership in 1978 they presumed that the licence continued and so, by implication, it did or alternatively that as they were not made aware of the KC Hotel’s new owners the use of the road was secret.

The Court of Appeal dismissed the appeal. By granting KCL a personal licence the Tara Hotel had intended that the licence would lapse upon KCL ceasing to own the KC Hotel; in such circumstances they could not argue that a new licence continued by implication. The subjective state of mind of the landowner was wholly irrelevant. It followed that the use of the private road could not have been with permission.

Nor could it be said that the use of the road was secret; it was obvious to any reasonable person that the KC Hotel were using the private road on a regular basis. The fact the road was used by independent contractors (e.g. coach and delivery drivers) to serve the KC Hotel was also immaterial; the use of the road by such people was with the knowledge of the KC Hotel and for their benefit.

It was also irrelevant that the owners of the Tara Hotel had been unaware that a change of ownership had occurred in 1978; they had granted the personal licence and it was not too onerous a condition to expect them to check every so often if the licence had determined (by there being a change of ownership).

Comment

This case should serve as another warning to all landowners of the need to be aware of the land they  own and whether other people are using their land with their permission. A land owner’s ignorance of the state of affairs will not prevent others from obtaining rights of way over their land.

S is a barrister, based in London, who practices predominantly in housing and local government law.

0 Comments

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.