When your neighbours don't take a blind bit of notice
Bennett v Winterburn  UKUT 0059 (TCC)
With the increasing demand for "public" space as part of private developments, landowners should be aware of the risk that the amenity and value of their property may be impacted if third party rights over their land are allowed to accrue unchecked.
A recent appeal from the Property Tribunal provides welcome reassurance to landowners and developers that visible notices can be sufficient to prevent rights being acquired over their land, even if the notices are frequently ignored in practice.
However, careful consideration must be given to what such notices are intended to guard against, and the wording should reflect this accordingly. This case also strikes a strong warning note in this regard, because the landowner's notice related only to parking and was therefore not sufficient to prevent the arising of a right of way on foot.
What is an Easement?
An easement is a third party right that someone may have over land that belongs to someone else. The right may permit the beneficiary to use the other party's land in a certain way, or to prevent the owner from using it in a certain way.
Common examples of easements include rights of way, rights of light and parking rights. There are a number of legal requirements that must be fulfilled for an easement to exist. In particular for this case, there must be a dominant property, which benefits from the use, and a servient property, on which the use is exercised.
Acquiring Easements by Prescription
Easements can be granted expressly or impliedly, for example on the sale of part of a piece of land. Even if there is no deliberate or intentional grant, an easement can arise in certain circumstances after a certain period of time.
In particular, where a party uses land that does not belong to him for the benefit of his own property over a continuous period of at least 20 years, he can acquire a permanent right to continue doing so. Any previous usage by a predecessor will count towards the 20 year period if the use is continuous.
To acquire an easement in this way the uninterrupted long usage must have been exercised "as of right", meaning that the usage cannot have been with permission, in secret or by force.
The case of Bennett v Winterburn concerned an appeal against the decision of the First Tier Tribunal Property Chamber which declared that several easements existed over the subject property. The owner of the property appealed against the decision.
The dispute related to the use of a car park in the West Yorkshire town of Keighley ("the Car Park"). The Car Park was originally owned by the local Conservative Club ("the Club"), albeit it had been sold to the Bennetts by the time the case reached Court.
The adjoining dominant land was owned by the Winterburns, and comprised a small commercial property that was used as a fish and chip shop ("the Shop"). From about 1988 onwards, ie for a period in excess of 20 years, the Shop customers and suppliers had parked their vehicles in the Car Park or walked across the Car Park to gain access to the Shop.
During the time that it owned the Car Park, the Club had erected a sign to prohibit parking. The sign read: "Private car park. For the use of club patrons only. By order of the committee".
The owners of the Shop were aware of the sign, which was clearly visible. There was also a second sign in the window of the Club itself. However, both signs were blithely ignored by the Shop's customers and suppliers.
In 2010 the Bennetts acquired the Club's land, including the Car Park. In 2012, the Winterburns claimed prescriptive easements over the Car Park.
The First-Tier Tribunal Decision
The First-Tier Tribunal found in favour of the Winterburns. It held that the Shop had indeed acquired the benefit of a right of way by foot and by vehicle over the Car Park.
The Bennetts had argued unsuccessfully that the sign erected by the Club meant that there could be no prescriptive easement because the use of the Car Park in breach of the sign meant that the use was "forceful", in the legal rather than the physical sense. They argued that the sign had rendered use of the Car Park by anyone other than a Club member contentious, and so the Winterburns were unable to meet the criteria for acquiring an easement by prescription.
The Tribunal considered that the sign was not enough to prevent an easement from arising. The Tribunal judge considered previous case law, in particular the earlier decision in Smith v Brudenell-Bruce , and concluded that the owner of the servient land "must do everything consistent with his means... to contest and to endeavour to interrupt" the use of the servient land. Considering the facts, the Tribunal was not persuaded that a "passive" sign merely addressed to the world at large was objection enough. There were other actions that the Club could have taken, such as locking the gates to the Car Park, and it had chosen not to take them.
The Upper Tribunal Decision
The owners of the Car Park appealed against the first decision on two grounds.
First, they argued that the 20 years' continuous use required for an easement to arise by prescription does not start to run unless the Club could bring an action in trespass against the Shop's owners. The Club argued that the 20 years had not commenced because they could not bring an action against the Shop's owners for the trespass. This in turn was because the trespassers were the Winterburns' customers and suppliers, rather than the Winterburns themselves.
The Upper Tribunal considered this argument, but dismissed it. There was no binding authority to support the contention that the servient owner could have sued the dominant owner in trespass. Instead, the correct test was whether there was "accommodation of the dominant tenement". Here, the dominant land had been "accommodated" for a period of over 20 years, which had started running at the point when the Shop began to benefit from customers and suppliers using the Car Park for parking and access.
However, the owners of the Car Park had more success with their second ground of appeal. On this ground, they argued that the prohibitory sign, which was addressed to the world at large – thus including the Shop's customers and suppliers - made it clear that the parking of vehicles on the Car Park by anyone other than a member of the Club was objected to by the Club.
The Upper Tribunal was persuaded that Smith v Brudenell-Bruce did not impose a minimum test for actions that the owner of the servient land was required to take. The Upper Tribunal considered and applied an earlier case, Taylor v Betterment Properties , in which the Court had found that a suitably worded notice was sufficient to render use of land in contravention of that notice contentious and thus not "as of right". The same principle applied here, where the sign was clear and unambiguous.
The Upper Tribunal found that it was irrelevant that the Club's sign was not specifically directed at the Winterburns or their customers, or that it indeed pre-dated the Winterburns acquiring the Shop. Consequently the Winterburns had not acquired any rights to park on the Car Park.
However, the wording of the Club's notice could only assist the Bennetts so far. The Upper Tribunal dismissed the appeal so far as it related to pedestrian access, because the Club's sign had restricted parking only. As a consequence, the Upper Tribunal found that a right of way across the Car Park by pedestrians had arisen after continuous usage in excess of 20 years by the Shop's customers.
Our Advice to Landowners
This case should cause landowners in a similar position to heave a sigh of relief. It is useful to have confirmation that a well worded sign should be enough to fend off rights being acquired over property and that extensive steps, such as commencing litigation, are not essential.
The case also confirms that landowners will still be protected by appropriate signage even where that signage is routinely ignored. However, an appeal of this decision to the Court of Appeal has been lodged, so please look out for further updates in our next issues of RED Alert.
This case does throw into sharp relief the need to keep a very careful eye on any use of land by a third party, which could ultimately preclude a development or sale of the servient land. If there are practices such as using the land as a right of way, or for parking, it would be prudent to seek advice on taking steps such as erecting carefully worded signs.
If a notice seeks to limit the activities of the public and neighbouring landowners then there is a risk of its not being comprehensive and therefore it may not fend off all unwanted third party rights. An alternative approach could be to welcome use of the land, if appropriate, by granting permission. In this case, as the land would be used with the permission of the owner, then the use will not be "as of right". This approach has been taken at the King's Cross development, where you will be politely reminded, during a casual stroll across the site, to "use this private estate considerately".
Every case will depend upon its own facts, and taking advice and appropriate steps can prevent serious problems at a later stage.