Authors: Matthew Bonye, Partner and Head of Real Estate Dispute Resolution, London and Judith Smyth, Associate, Real Estate Dispute Resolution, London
In a reassuring judgement for landowners, the Court of Appeal has ruled this week that clear and visible signage can constitute a sufficient objection to prevent unauthorised users claiming a right of way over land in the form of a prescriptive easement (Winterburn v Bennett  EWCA Civ 482).
Prescriptive easements are created by 20 years' uninterrupted use of the land by the party claiming the right. The use must not be secret or with the legal owner's permission, and must also be "nec vi", meaning "without force". This means that the claiming party will not obtain the right if the legal owner has during the 20-year period actively objected to the claiming party's use. The phrase "without force" extends beyond its literal meaning, and requires the claiming party to show that his use was not contentious or allowed only under protest.
In this latest case, Winterburn v Bennett  EWCA Civ 482, the owners of a chip shop claimed to have acquired a right by prescription to allow their suppliers and customers to use the car park of the adjacent Conservative Club Association.
The shop's patrons had been openly using the car park since the shop opened in the late 1980s. Prior to this time, the club had erected a sign at the car park entrance that said "Private car park. For the use of club patrons only." The sign was clearly visible to users of the car park and remained in place until 2007, so was present through the time period material to the chip shop owner's claim. A further sign had been displayed in the window of the club building, and from time to time the club's steward had also remonstrated with the chip shop owners about their customers' use of the car park, but no further action was taken to try to prevent unauthorised parking. The shop owners claimed they had therefore obtained a right of way as a result of 20 years' uninterrupted use of the car park.
The Court of Appeal rejected the claim, agreeing with the Upper Tribunal that as long as a warning sign is clearly displayed and maintained, it can constitute a sufficient objection by the legal owner so as to prevent an easement coming into being. The landowner's objection only needs to be proportionate, so the club was not required to take additional preventative measures (such as sending letters of protest) simply because the chip shop and its suppliers and customers had repeatedly ignored the signs already displayed.
The judgement is welcome clarification for landowners who might otherwise have had to remonstrate directly with trespassing neighbours, install unnecessary barriers or bring legal proceedings in order to prevent the neighbours gaining a valuable right over their land, potentially incurring considerable costs in doing so.
Whether rights have been acquired by neighbours is an important consideration on the purchase of land and before any development commences, especially as claiming such rights is an increasingly common way of seeking to prevent development. Landowners can now be reassured that they do not need to take unnecessarily aggressive, confrontational or disproportionately expensive steps just to keep their premises from becoming thoroughfares for their neighbours.
However, it is important that landowners take care when erecting warning signs, as they must be clearly visible and also contain wording that is broad enough to stop all potential easements from arising. In Winterburn, the landowner had already failed to prevent a pedestrian easement arising in favour of the neighbour, because the signs referred only to vehicles and not to access on foot. The appropriate steps to take to prevent acquisition of rights of way by prescription will depend on particular circumstances, and it is important that advice is taken at an early stage when unauthorised land use is discovered.
Matthew Bonye, Partner and Head of Real Estate Dispute Resolution at Herbert Smith Freehills, is quoted in Estates Gazette's article on this case, "Car park decision a victory for landowners".
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