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Easements
Court of Appeal
22 November 2011
Lord Justice Aikens. MR. Lord Justice Lewison
[2011] EWCA Civ 1356
[2012] 07 EG 100
Easements - Prescription - Right of way - Access road owned by one hotel used by owner of another - Licence granted by landowner for that purpose expiring on change of ownership away from licensee - Use of road continuing - Whether prescriptive right of way acquired over access road by use "as of right" for 20 years - Whether use permissive or secretive
The appellant and the respondent owned adjacent hotels. The appellant's hotel had a private access road that ran adjacent to the respondent's main building; the respondent and its predecessors in title had, for many years, also made use ofthat road. Between 1973 and 1980, such use had been pursuant to a personal licence arrangement between the appellant and the then owner of the respondent's hotel, but the licence had expired in 1980 when the respondent's hotel changed hands. There were further changes of ownership in 1996 before the respondent purchased its hotel in 2002. During that time, the access road had continued to be used for deliveries and by coaches taking passengers to the respondent's hotel.
In 2007, the appellant asserted that the respondent had no rights over the access road and should cease trespassing on it with immediate effect. Its application for an injunction was refused in the court below. The trial judge upheld the respondent's claim to have acquired a prescriptive right of way over the road: see [2010] EWHC 2749 (Ch).
The appellant appealed. In support of its contention that the use of the access road had not been "as of right" for the necessary 20-year period, in the sense of without force, secrecy or permission, it submitted that: (i) there had been nothing to alert it to the change of ownership of the respondent s hotel in 1980 and, where it had been unaware of that event, the correct approach was to infer a continuation of the licence until the next change of ownership in 1996; (ii) alternatively, the use had been "by secrecy" after 1980 since the identity of the person using the road was unknown to the appellant. It further submitted that,...