Almost exactly a year ago we posted a blog on the High Court case of London Tara Hotel Limited v Kensington Close Hotel Limited, where it was decided that a personal licence to use a roadway granted to the previous owner of the Kensington Close Hotel did not prevent the current owner from acquiring an easement based on over 20 years’ continuous use. The Court of Appeal has upheld the High Court decision and made a couple of interesting comments in the process:
- The High Court had decided that the original licence was personal to the previous owner of the Kensington Close Hotel (‘Kensington’). The owners of the Tara Hotel (‘Tara’) argued they had granted a licence to Kensington (which they could then terminate), to try and defeat Kensington’s claim that they had the benefit of an easement. The Court of Appeal confirmed that there could not be an implied licence or permission to the successor owner of the Kensington simply by inaction or tolerance on the part of Tara.
- In order to acquire the easement based on continuous use, the owners of the Kensington had to show that the use was ‘open’, i.e. not hidden or secret. The owners of the Tara claimed that as they were not informed of the change in identity of the owners of the Kensington, the use was ‘secret’. The Court of Appeal dismissed this argument – there was no intention to keep the change in ownership of the Kensington quiet, and the use was in every ordinary sense of the word ‘open’.
Our advice therefore stands – those managing property interests should take steps to monitor the nature of any rights they have granted. As the Court of Appeal pointed out, it only means checking the position once every 18 or 19 years, which is not onerous!