Prescriptive Easements…

 …How do you prevent others acquiring rights over your land?

According to the recent Court of Appeal judgement in Winterburn v Bennett [2016]  it’s relatively easy.
It had previously been determined that placing signs on the land telling trespassers to ‘KEEP OUT’ when sufficient in number, location and clarity of wording are adequate to prevent easements arising by prescription. The most recent judgement on this point in Winterburn v Bennett has confirmed this.
The case revolved around a car park opposite a Conservative Club Association. The car park belonged to the Conservative Club and served the club for a long time. In 2010 the club premises were sold and the new buyer subsequently let the premises to a tenant. That tenant then blocked vehicular access to the car park, though access remained on foot.
A nearby Fish & Chip shop had also made use of the car park for a number of years, since 1992 in fact. Over that time the patrons of the chip shop regularly used the car park when collecting food from the restaurant and likewise delivery drivers would park up on the car park to unload their deliveries. Over that period there were approximately 15 occasions where the owners of the club protested about the car parks use by the Fish & Chip shop and up until 2007 there was sign at the entrance to the car park clearly visible stating “Private Car Park. For the use of Club Patrons only. By Order of the Committee.” Despite this it did not deter visitors to the Fish & Chip shop.
The Court of Appeal dismissed the Club’s appeal to overturn the decision of the lower courts. An easement by prescription is established where they are used ‘as of right’ which means without force, secrecy or permission for 20 years. In this case it was not hard to establish the latter two, the visitors and delivery drivers going to the Fish & Chip shop certainly didn’t do it in secret or ask permission, but the question to be decided by the courts was did they do it ‘without force’. They held that ‘without force’ means more than just not using violence, and the use must be not contentious. Landowners do not need to take physical steps or legal proceedings to secure their land and prevent easements arising,
So, landowners, make your signs large and clear if you want to prevent others acquiring rights on your land, but no need to bring out the road blocks!