The use of notices to prevent easements arising by prescription

The Court of Appeal case of Winterburn v Bennett [2016] would have come as a relief to many land owners. The case showed that by displaying clear and visible signage that the land in question is private, landowners can prevent unauthorised users claiming rights over their land in the form of a prescriptive easement.

An 'easement' is a right benefiting a piece of land that is enjoyed over another piece of land owned by someone else. The rules relating to acquiring easements by prescription are complicated but, in brief, the party claiming the right must show at least 20 years' uninterrupted use of the land "as of right", that is, without force, without secrecy and without permission.

In this case Mr and Mrs Winterburn had been operating a fish and chip shop since the late 1980s and during this time its customers and suppliers had openly been using the car park  belonging to the neighbouring Conservative Club Association. The car park (and nearby club house) was sold to Mr and Mrs Bennett in 2010. The Bennetts subsequently let the club house and car park in 2012 and vehicular access to the car park was prevented by the tenant.

The Winterburns claimed that they had acquired a right to park vehicles belonging to them, their suppliers and customers on the car park by prescription based on 20 years' uninterrupted use "as of right" (i.e. without force, secrecy and permission).

At all times until 2007 a sign had been placed at the entrance of the car park that read "Private car park. For the use of Club patrons only. By order of the Committee" which was clearly visible to anyone entering the car park on foot or by vehicle and was present throughout the time period material to the Winterburns' claim. There was also a similar sign in the club house window and from time to time the Club had also asserted ownership of the car park and had informed the Winterburns that their customers and suppliers had no right to park on it.

The Court of Appeal rejected the claim confirming that the Winterburns had to show 20 years' uninterrupted use "as of right" and in this case it was the "without force" element that was crucial. This case shows that "without force" carries more than its literal meaning. It is not enough for the party claiming the easement to show that it has not used violence; it must show that its user was not contentious or allowed only under protest. The case considered whether the continuous presence of legible signs stating that the car park was private property and for use by the Club's patrons only was sufficient to render the use of the car park by the Winterburns (and their patrons) contentious. The Court of Appeal held that the signs were sufficient to prevent an adjoining owner's claim for an easement by prescription.

Where a land owner has erected clearly visible notices or signs making its position clear, an unauthorised use of the land cannot be said to be "as of right". The Court of Appeal confirmed the land owner's objection only needs to be proportionate and the Club was not required to take any further steps to protest (i.e. writing letters, confronting users or instigating legal proceedings), even though the Club was aware that the signs were being completely ignored. Erecting appropriate signage is an easy way of making clear that land is private and not to be used by others, and the Court of Appeal failed to see why those who ignore such signs should be allowed to obtain legal rights over third party land.  

This judgment is a welcomed one for by land owners as it provides a reasonably simple and inexpensive way to prevent third parties from inadvertently acquiring easements over their land. However, to be effective in preventing someone from acquiring an easement by prescription, land owners should take care when erecting such warning signs, as they must be sufficiently clear and visible and contain wording broad enough to stop all potential easements from arising. Land owners can now be reassured that they do not need to take disproportionately expensive or confrontational steps to prevent neighbours or third parties from gaining a valuable right over their land.