08 June 2015

Court clarifies when signage can stop third parties acquiring rights of way over land

Landowners can prevent third parties claiming rights to use their land by using visible, clearly worded signs prohibiting such use, even if those signs are ignored, a Court has ruled.

Buyers bought a car park from the local Conservative Club. Customers and suppliers for the neighbouring fish and chip shop had parked in the car park, or walked across it to get to the shop, 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, and both signs were ignored by the shop's customers and suppliers.

The shop owners claimed their customers and suppliers had a legal right to park and a pedestrian right of way over the car park by way of '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 a result of use of force;
    • not the result of the other landowner giving permission.

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.

The owner of the car park argued that, at best, the shop owners could only claim an easement which allowed them to park in or walk across the car park themselves. They could not claim such a right for their customers and suppliers. The Court rejected this argument and ruled that the rights claimed could be easements if they 'accommodated' (or benefited) the shop. Use of the car park by customers and suppliers did accommodate the shop in this way.

The second argument of the car park owner was 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.  This meant the use of the car park by anyone else was not a use 'as of right'.  The Court agreed with this argument – but only up to a point.

It agreed that the wording on the sign was sufficient to stop cars being parked in the car park 'as of right'. However, the wording was not sufficiently clear to stop pedestrians from walking across the car park 'as of right'. The Court therefore upheld the argument that there was no easement allowing shop customers and suppliers to park in the car park, but there was an easement allowing pedestrian access to the shop by walking across it.

Operative date

Now

Recommendations

  • Landowners concerned to stop third parties claiming rights to use their land should ensure they put up clearly worded signs prohibiting such use.
  • However, landowners should also monitor use of their land that could result in easements over it being recognised, and take steps to stop such use before it develops into a use 'as of right'.

Case ref:

Bennett v Winterburn [2015] UKUT 0059 (TCC)

If you wish to discuss this topic further, please contact Michael Watson on 0113 297 1850 or at mwatson@shulmans.co.uk.