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Rights by prescription


Can a simple notice protect you from a claim of right by prescription?

Over the years there has been much debate between land owners as to the nature and effect of easements arising by way of prescription, but could a simple notice protect your property?  Well the matter was raised in the recent case of Winterburn v Bennett (2016) EWCA Civ 482.

By way of background the land in dispute related to part of a car park (“the Car Park”) which was owned by Conservative Club Association (“the Club”).  The Club’s members historically used the Car Park to access the nearby club house until 2010.   In 2010 the club house and Car Park was sold to Mr and Mrs Bennett, who in turn leased it to a tenant in May 2012.  In the latter part of 2012 the tenant obstructed all vehicular access to the Car Park and subsequently pedestrian access. 

Across the road from the Car Park was a fish and chip shop (“the Shop”).  Mr and Mrs Winterburn were the tenants of the Shop from circa 1987 / 1988 until 2007 in which they then became the freehold owners. 

Given its location and proximity to the Car Park, the Shop’s customers often parked in the Car Park.   It was generally accepted by all concerned, that in the period from 1997/1998 to 2007 the Shop’s suppliers had used the Car Park up to 9 times a week to make deliveries.  Whilst this did not interfere with the Club’s operation of the club house there were at least 12 – 15 occasions over a 7 year period in which the Club’s steward asserted ownership and made it clear that the Shop’s suppliers and customers had no right to use the Car Park. 

Furthermore, there was at all times until 2007 a sign at the entrance of the Car Park which stated “Private car park.  For the use of Club patrons only.  By order of the Committee”.   The same or similar notice was also placed in the windows of the club house. 

The Court of Appeal was asked to consider whether the signs by the Club were sufficient to prevent Mr and Mrs Winterburn from acquiring a right which allowed their suppliers and customers to park in the Car Park.

In order to prove that a right of way has been acquired by prescription Mr and Mrs Winterburn had to prove, on the balance of probabilities, that there had been a continuous period of 20 years in which they had used the Car Park as of right.  ‘As of right’ meaning without force, without stealth or without permission. 

Lord Justice Richards stated that “In circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be "as of right". Protest against unauthorised use may, of course, take many forms and it may, as it has in a number of cases, take the form of writing letters of protest. But I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings”.

 In view of the above the Court of Appeal dismissed the appeal and concluded that Mr and Mrs Winterburn did not have a right of access or use to the Car Park.

For advice on any litigation matter please contact Claire Bentick at Claire.Bentick@smesolicitors.co.uk or call reception on 01905 723561.

Added: 01 Nov 2016 15:02


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