London Tara Hotel Ltd v Kensington Close Hotel Ltd

An easement may be acquired by prescription where use has been open, peaceable and not by permission, applying the principle nec vi, nec clam, nec precario. The user’s subjective belief is irrelevant. Mere tolerance or failure to object does not amount to permission; an implied licence requires a positive and overt act by the servient owner.

A personal licence which has ceased to apply does not, without more, make subsequent use permissive. The court must assess objectively whether the use asserted a right and whether the servient owner had a reasonable opportunity to resist it. A right of way benefits the dominant land where use is closely connected with its normal enjoyment.

The claimant owned the Tara Ring Road, a private service road adjoining the defendant’s hotel. The defendant’s hotel had used the road for deliveries, servicing and coaches for many years.

The defendant relied on prescription, principally under the Prescription Act 1832 or the doctrine of lost modern grant. It also relied on a right of way over a triangular area granted by a 1938 conveyance. The claimant sought declarations, an injunction and damages for trespass, contending that use of the ring road had been permissive under a 1973 personal licence and that the 1938 right was limited by the size of the original entrance archway.

The central issues were whether the defendant had acquired a prescriptive easement and, alternatively, the proper construction of the 1938 conveyance.

1. Prescriptive easement. The defendant had acquired an easement by lost modern grant through at least 20 years’ use from about 1980. Prescription depends on use which is peaceable, open and not based on the servient owner’s permission. The user’s subjective state of mind is irrelevant. The relevant question is how the use would have appeared to a reasonably alert and diligent owner.
2. Permission. The 1973 licence was personal to the original owner of the defendant’s land and had ceased to apply. The claimant’s mistaken belief that it continued did not make the subsequent use permissive. Following the approach in Beresford, mere inactivity or tolerance was insufficient. No positive, overt act established an implied licence to the successor owners.
3. Open use and benefit. The use by coaches and small vans was open and frequent. Coaches using the road to collect and drop off hotel guests benefited the dominant land and accommodated its normal enjoyment. Such use need not be by the occupier or its agents.
4. Scope of the easement. The prescriptive right was for commercial vehicles and coaches, excluding private cars, taxis and minicabs. The 1938 conveyance granted a pedestrian and vehicular right of way for all purposes over the blue triangle for access to the hotel or any replacement building. The reference to “any building” did not confine the right by reference to the size of the original archway.
5. The court therefore granted declarations reflecting those rights. The alternative remedy discussion, including the possible refusal of an injunction if the prescriptive right had been limited, was unnecessary to the decision.