The Court of Appeal has decided in Trevor & Elizabeth Winterburn v Garry & Lynne Bennett (2016) that a landowner can prevent someone acquiring rights over land by clear signage alone.
The Winterburns claimed to have a right to park on land belonging to the Bennetts by prescription -essentially long use over a number of years. The land was part of a car park originally owned by the Conservative Club Association ('the Club'), bought by the Bennetts in 2010.
The Winterburns owned and operated a fish and chop shop next to the entrance to the car park. They had occupied this since the late 1980s and from that time until 2012, their suppliers had regularly used the car park when making deliveries and their customers parked there during opening hours.
Over a 7 year period there were 12-15 occasions when the Club's steward asserted ownership of the land and told the Winterburns, their suppliers and customers that they had no right to park on it.
Until 2007 there was a sign at the entrance to the car park saying 'Private car park. For the use of Club patrons only. By Order of the Committee'. This sign was clearly visible to anyone coming on to the land. There was a similar sign in the window to the Club premises.
The question for the court was whether the signs were sufficient to prevent the Winterburns acquiring a right to use the land as a car park. To do so they had to show that they had 20 years' uninterrupted use of the land 'as of right'. This means use without force, without secrecy and without permission.
The court held that the presence of the signs meant that the Winterburns' use of the land was not 'without force'. The term 'without force' meant more than its literal meaning. 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.
Previous caselaw was relied upon which said:
'If the landowner displays his opposition to the use of his land by erecting a suitably worded sign which is visible to and is actually seen by the local inhabitants then their subsequent use of the land will not be peaceable. It is not necessary... to show that they used force or committed acts of damage to gain entry. In the face of the signs it will be obvious that their acts of trespass are not acquiesced in'.
There was no requirement for the Bennetts (and before them the Club), to use physical obstructions, protest letters and legal proceedings in addition to the signs to prove that they had not acquiesced to the use. No right to use the land had therefore been acquired by the Winterburns because they did not satisfy the test of 'no force'.
- Where a landowner erects clearly visible signs asserting that land is private, any unauthorised use of the land will not be 'as of right'. This prevents a right by prescription being acquired
- Note that any such sign needs to be clearly visible and clearly expressed. It is advisable to make it clear that not only is the land private but that use without permission is unauthorised and will constitute a trespass
- Landowners will be relieved to hear that they need not take physical steps or issue court proceedings to prevent rights being acquired