Where rights are exercised over the land of a third party for a period of 20 years without force, secrecy or the permission of the other landowner, rights (easements) are acquired.
The 2002 case of Smith v Brudenell Bruce was generally viewed as meaning that a landowner had to do everything he sensibly could (having regard to the rights in question) to dispute and interrupt the rights to avoid easements being acquired. The principles in Smith were applied on a case by case basis but the bar was set high if landowners were to prevent rights being claimed over their land.
The recent Court of Appeal case of Winterburn v Bennett will come as a welcome relief to landowners concerned by the use of the land by third parties.
The case concerned a fish and chip shop. Customers had been parking in the car park of a neighbouring club. Some 15 years after the rights began to be exercised (i.e. short of the 20 year prescription period) the club had erected signage making it clear that parking was for club members only.
The fish and chip shop owners argued that the club hadn’t been sufficiently proactive to prevent the acquisition of rights and that if signs were being ignored (as they patently were) other steps should have been taken too.
The Court decided that the erection of the signs meant the owner had made its position clear. It wasn’t necessary for the owner to take further steps or to confront the wrong doers. The court acknowledged there was a social cost to confrontation which many landowners would prefer to avoid.
Whilst formal letters of objection and/or the stopping third parties exercising rights will undoubtedly still be the preferred option, the erection of clear signage indicating that rights may not be exercised, will in many cases now be sufficient to prevent easements being acquired.