In Winterburn & Anor v Bennett & Anor EWCA Civ 482 the Court of Appeal confirmed that a landowner can prevent prescriptive rights being acquired over its land simply by erecting clear and visible signs.
The Conservative Club Association (“the Club”) had owned the disputed land (part of its car park) until 2010, at which time it was purchased by the Bennetts in this case. The Winterburns own and operate a fish and chip shop sitting adjacent to the entrance to the car park and throughout their time of operation, their suppliers and customers used the disputed land to park. In 2012 the Bennetts let the Club building and car park to a tenant who obstructed vehicular access to the car park, leading the Winterburns to bring a claim for prescriptive rights over the land belonging to the Bennetts, for themselves and others using their premises.
There was at all times since 2007 a sign attached to the wall of the building on one side of the entranceway to the car park which said ‘Private Car Park. For the use of Club patrons only…’. There was also a similar sign in the Club window which was clearly visible, albeit further away from where the Winterburns’ visitors parked. Apart from a very small number of express or implied assertions made by the Club steward, the Winterburns or their visitors were never excluded nor their use restricted by the Club until 2012.
A prescriptive easement can be acquired over land by way of lost modern grant (as was claimed in this case) by proving that there has been 20 years’ uninterrupted use as of right; that is without force, without secrecy and without permission.
The pertinent question in this case was whether the Winterburns’ use over the years had been without force, so as to have been ‘as of right’. The Court said that the Winterburns had to show the use was not contentious or allowed only under protest. It looked at what constituted protest on the part of the Club and whether the presence of the signs was sufficient to do so.
The Court provided reassuring guidance to landowners in finding that in order to avoid acquiescing to the wrongful use, it was not necessary for the Bennetts to physically obstruct the use or bring legal proceedings to prevent the wrongful user. It held that the two signs were clearly visible and clearly informed users that the car park was for the use of the Club patrons only. In that regard, the use by the Winterburns could not be said to have been ‘as of right’ and that consequently prescriptive rights had not been acquired.
This case provides some reassurance for landowners that they will not always have to take expensive or contentious steps in order to prevent another party from acquiring prescriptive rights over their land. The decision confirms that all a landowner must do is erect clear and visible signage.
Despite the findings in this case and whether or not you have erected signage already, it is always sensible to seek advice if you suspect or know somebody is using your land without permission. In such circumstances, a letter from a solicitor warning the user that it has no right to use the land in question may provide further certainty should the user claim in the future to have acquired prescriptive rights over your land.