Winterburn v Bennett  EWCA Civ 482
The Court of Appeal has provided useful guidance to landowners who wish to prevent people from acquiring rights of way over their land, together with other easements. It is well known that long term use of rights of way or rights to park, usually for a minimum period of 20 years, can result in legal rights arising in favour of the user. However, in this case the presence of no-parking signs was sufficient to express a landowner’s continuing objection to unauthorised parking on its land, and thus prevent others from acquiring a right to park on the land. It was not necessary for the landowner to instigate legal proceedings to prevent the rights arising, which may help to reduce legal costs for landowners in the future.
The disputed land in question was a car park owned by a Conservative Club Association (the “Club”). The land was purchased from the Club in 2010 by the Respondents, and they subsequently obstructed access to the car park in 2012.
Prior to the access being blocked off, a local fish shop (the “Shop”), together with its various suppliers and customers, had regularly used the car park since the shop opened in 1987 or 1988. This use did not usually interfere with the Club’s operations, but the Club steward had occasionally felt the need to assert the Club’s ownership of the land, and remind non-members that they were not permitted to park on the land. Until 2007, there were signs clearly visible in the car park at all times asserting the land was privately owned and for the use of club patrons only.
The issue on appeal was whether the signs were sufficient to prevent the appellant Shop owners acquiring a right to use the car park for their business, or whether the owners of the car park had acquiesced to this use and allowed the Shop owners to obtain legal rights, notwithstanding the presence of the signs.
The Shop owners’ claim
The Shop owners asserted that they had obtained a right to use the car park by prescription. To be successful, they would need to prove 20 years’ use of the car park “as of right”:
- without force
- without secrecy; and
- without permission.
The use of the car park was known and was certainly without permission, so the question was whether the use was “without force”. In this context, “without force” is understood to mean more than its literal meaning of “without violence” and also means that the use was not contested or protested.
The Shop owners argued that their use was not sufficiently protested in a proportionate, repeated and continuous manner. They argued that if the signs were being ignored, as was the case, it was incumbent on the landowner to take such further steps as were practicable, such as writing a strongly worded letter or commencing legal proceedings.
The Court found in favour of the owners of the car park. The Court agreed with the premise that a landowner’s objection to any use of his/her land must be clear. However, the Court considered that the signs were sufficient in doing just this, as they confirmed that the Shop owners had never enjoyed use of the car park “as of right”. The Court also rejected the argument that it is necessary for the landowners, having made their protest clear, to take further steps by confronting the wrong doers orally or in writing, still less to go to the trouble and expense of issuing legal proceedings.
The Court noted that there is a social cost to confrontation and “unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs”. The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. Those who ignored such signs should not be entitled, by reason of their wilful ignorance, to legal rights over the land.
This decision helps to clarify what landowners must do to ensure that other people do not acquire rights to use their land by prescription. It is positive news for landowners, who may be able to avoid costly and stressful legal proceedings through careful use of signage. However, where serious infringements of property rights are committed or threatened, landowners should still seek legal advice to ensure that their rights are protected. Each case will be different, but in many cases it will be preferable to prevent infringements lasting for long periods of time, provided that any action taken is proportionate. Equally, all is not lost for those trying to gain rights through prescription, and we would advise those persons to also seek legal advice, as the facts may not always be so clear cut as in this case.
Taylor Wessing reported on the Upper Tribunal Decision of this case in February 2015. You can see the article here.