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Case law: Signage can stop third parties acquiring rights of way over land, Court of Appeal confirms

Landowners can stop third parties claiming rights to use their land by using visible, clearly worded signs prohibiting such use, even if those signs are ignored, the Court of Appeal has confirmed.

Legal Alert

This update was published in Legal Alert - July 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

In this case, the buyers bought a car park from the local Conservative Club. Customers of a neighbouring fish and chip shop had frequently parked in the car park to buy fish and chips, and the shop's suppliers had parked vans and lorries there while making deliveries, for more than 20 years.

The Conservative Club had put a sign in the car park saying 'Private car park. For the use of club patrons only. By order of the committee'. This was clearly visible and the shop owners were aware of it. There was also a sign in the window of the Club. Both signs had been ignored by the shop's customers and suppliers.

The shop owners claimed their customers and suppliers had a legal right to park there, and a pedestrian right of way over the car park. Such rights are known in law as 'easements'. One of the circumstances when the law will recognise an easement is if:

  • an owner of property (the 'dominant' land) uses another landowner's land (the 'servient' land) for the benefit of his property;
  • for a continuous period of 20 years or more; and
  • the use is 'as of right', which means it is:
    • not secret;
    • not the result of the other landowner giving permission; and
    • exercised without using force.

When calculating the 20-year period, the owner of the dominant land can also count use of the servient land by any of the previous owners of the dominant land, provided the use has been continuous.

In this case, the use of the car park had been open (not secret), and was not subject to a specific permission. The issue was therefore whether it had been exercised using force.

The new owner of the car park argued that the sign in the car park made it clear to everyone, including customers and suppliers, that the Club objected to use of the car park by anyone other than club patrons. It argued that this meant the use of the car park by anyone else was use by force.

The Court of Appeal agreed, and ruled that the word 'force' was not limited to violence. It was sufficient if customers and suppliers ignored clearly visible signs which made it clear that the owner objected to use of the car park by third parties, and that such use was 'contentious'.

It also ruled that it was not necessary for the owner of the car park to put up physical barriers to entry to the car park, or go to court to enforce its rights.

The Court said 'most people do not have the means to bring legal proceedings. 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'.

Operative date

  • Now

Recommendations

  • Landowners concerned to stop third parties claiming rights to use their land should ensure they put up clearly worded signs, which prohibit such use
  • Landowners should also monitor the use of their land in a way that could result in an easement over it being recognised, and take steps to stop such use before it develops into a use 'as of right'

Case ref: Winterburn and another v Bennett and another [2016] EWCA Civ 482

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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