Many landowners are unaware that, in certain circumstances, anybody may be able to gain a legal right to use their land. The law is clear. If a person uses someone else’s over an uninterrupted period of 20 years, then that person may gain a legal right to continue to use the land indefinitely. This is known as acquiring an easement “by prescription”.
An easement by prescription can only be acquired if the person using the land does so without using force, does not do so secretly and does not have the owner’s permission. This means that regularly sneaking onto someone’s land to use it wouldn’t qualify. Similarly, damaging a fence in order to gain access wouldn’t qualify either.
How can landowners stop rights to park
How can landowners stop people from acquiring a prescriptive easement over their land? Recently, the court of appeal has provided a practical, simple and cheap solution to this problem.
This solution came in the recent judgement of Winterburn v Bennett. In this case, Mr and Mrs Winterburn’s fish and chip shop was next door to the local Conservative Club. The Club had a large car park. Over 20 years, suppliers and customers of the Winterburns’ shop used the Club’s car park.
On many occasions, the Club steward told the Winterburns that its customers and suppliers had no right to park in the Club’s park. The Club also put up a sign on the wall next to the entrance of the park that read “Private car park. For the use of Club patrons only. By order of the Committee.” Anyone coming into the car park could clearly see the sign. The Club also put up a similar sign in its window.
At the hearing, the Winterburns and the Club agreed that the signs had been ignored.
The Winterburns argued that they had acquired an easement “by prescription” over the land and should be allowed to continue to use the land for parking.
The Court found that the Club needed only to show that the use of the land was “contentious” to demonstrate that it had been used with force. If the land was used with force, then the Winterburns could not acquire an easement “by prescription”.
Good news for landowners
The Winterburns argued that signs and verbal warnings weren’t enough to show that the use of the land was “contentious”, especially as the signs and warnings had been ignored by them and their customers for so long. If the Club felt so strongly about parking on its land they should have written to this effect or got a court order.
The Court said that peaceful and inexpensive measures such as appropriate signs are enough to show that the land is private and not to be used by others.
This is good news for all landowners. Visible signs will be enough to prevent people from acquiring a prescriptive easement over land, even if the signs are ignored.
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
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