A recent decision to allow landowners to easily prevent others acquiring rights over their land by erecting signage is being welcomed as a relatively easy and inexpensive means of preventing another from acquiring rights over another’s land.
The ruling means landowners do not necessarily need to take physical steps or issue court proceedings to protect themselves.
In the case of Winterburn v Bennett (2016), the Court of Appeal held that signs clearly visible to all stating that a car park was private property defeated a claim by a neighbouring owner that it had acquired a right to park there by long use.
This ruling concerns an ‘easement’ – a legal right over another’s land – which can arise by ‘prescription’ if a trespasser can demonstrate 20 years’ continuous use ‘as of right’ i.e. without force, without secrecy and without permission.
This case focussed on a car park in Yorkshire which had, for many years, been owned by the Conservative Club Association who maintained a sign at the entrance which read “Private car park. For the use of Club patrons only. By order of the Committee.”
There was also a similar sign in the window of the Club premises. However, both signs were ignored by customers and suppliers of a neighbouring fish and chip shop, who continued to park on and walk over the car park.
It was established that this and another similar sign on the Club building were “clearly visible to all users of the car park” and clearly informed all users “that it was a private car park for the use of Club patrons only”. The signs were taken down in 2007.
In 2012, following a change in ownership of the car park, the entrance was obstructed so as to prevent vehicular access. In response, the owners of the fish and chip shop, the Winterburns, claimed they and their visitors had acquired a right to use the car park through prescription i.e. long use.
The question for the Court was whether the signs were sufficient to prevent the owners of the fish and chip shop from acquiring prescriptive rights over the car park.
The key matter for the Court to consider in reaching its verdict was whether or not the presence of the signs meant that the Winterburns’ use of the land was not ‘without force’.
The Court held that the term ‘without force’ meant more than its literal meaning, such that it is not enough for a person claiming a right to show that they have not used violence; they must show that their use is not contentious.
The Court of Appeal held that the signs alone were sufficient to defeat the claim. The owner of the car park did not have to go further by, for example, erecting a physical barrier, writing legal letters to the offending parties or taking legal action.
In this case, the Court was satisfied that the signs were sufficiently clear, visible and understandable to make the parking on the land contentious and, therefore, not ‘without force’.
As a result, the claim for a prescriptive right to park on the landowner’s property failed.
However, the Court did find that the signage was not sufficient to defeat a claim for a pedestrian right of way by prescription over the car park, since the wording of the signs did not make this use “contentious”.
This decision will be welcomed by landowners wishing to prevent third parties acquiring rights over their land through long use. Such warning notices should also help in preventing regular public access giving rise to registration as a Town or Village Green, which can also sterilise a potential development site.
However, it is, of course, vital that all such signs are both clearly visible and carefully expressed, if they are to provide a useful defence to a landowner.
This case also highlights the need to keep a very careful eye on any use of land by a third party, which could ultimately prevent development or sale of the land.
If you are aware of third parties using your land as a right of way, for parking or another purpose, it would be prudent to seek advice on taking steps such as erecting carefully worded signs to protect your interests.
For further information or if you are a landowner seeking advice please contact our Commercial Property team.
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