Jim Purves reviews two recent cases where careless landowners have found their land blighted by third party rights of way.

We all love a short cut, don’t we? But when it’s your property that is being crossed, you cannot afford to ignore the potentially devastating consequences of unwanted legal rights arising over your land.

Two recent cases have highlighted the dangers of allowing third parties to cross your land unchecked. In one case, customers were accessing a fish and chip shop across a private car park belonging to a neighbouring club. Under the legal doctrine of prescription, after twenty years a legal right of way arose over the car park in favour of the chip shop.

In another case, a landowner owned two shops and an alleyway that served them. The use of that private alleyway by the public at large for over twenty years created a presumption that the landowner had dedicated the alleyway as a public right of way. Of course, it isn’t always practicable - or even desirable - to completely encircle our properties with high walls or fences and locked gates. However, some simple precautions can reduce the risks.

The use of either permissive or prohibitory signage, if correctly worded, can defeat prescriptive rights. Signage limiting parking to club members prevented the chip shop in the first case from acquiring vehicular rights within the car park, but did not negate pedestrian rights.

The owner of the alleyway in the second case had attempted to deny any intention to dedicate using the traditional method of interrupting the access for one day each year. However, closing the alleyway at Christmas, when the shops were closed and nobody was likely to notice, was held to be insufficient. In modern times, there are more reliable means of preventing public rights of way arising, including the statutory procedure involving depositing a statement and map with the local authority.

Allowing the unnecessary creation of unintended rights over your land can be an expensive mistake. Defending claims can itself be costly, while the rights may frustrate future plans for the use or development of the land, which may ultimately affect marketability and value.

The moral of the story? If third parties are taking a short cut across your land, take action before it’s too late!

This article originally featured in the summer edition 2015 commercial property newsletter.