Car parking wars

A legal easement (a right to use land that you do not own) can be created by long use also known as ‘by prescription’. One element necessary for creating an easement by prescription is that the use is “as of right”. This means it must be without force, without secrecy, and without the need for permission from the legal owner.

The recent case of Winterburn v Bennett [2016] considered what was meant by “without force”. The case concerned a Conservative Club that owned a car park which served their clubhouse.   Mr and Mrs Winterburn were the owners of a fish and chip shop next to the car park’s entrance. At the entrance to the car park there was a sign that read “Private Car Park. For the use of Club Patrons only. By order of the Committee”. Importantly, the sign was clearly visible for all entering the carpark on foot or by vehicle and a similar, though less visible, sign was displayed in the club’s premises. Despite the signs customers and suppliers of the fish and chip shop continued to use the car park throughout Mr and Mrs Winterburn’s twenty year period of ownership. Mr and Mrs Winterburn claimed that they and their customers had acquired rights to park in the car park. They claimed that this right had been created by prescription.

The Court of Appeal dismissed their claim on the basis that the Conservative Club had clearly prohibited anyone other than patrons of the club to use of the land due to the signs displayed. Therefore, any unauthorised use of the land could not be said to be “without force”.

A key factor in reaching the decision was the continuous presence of legible signs which clearly expressed that the car park was exclusively for patrons of the club. This was held to be sufficient to prove that the unauthorised parking by Mr and Mrs Winterburn was not conceded by the Club. This decision will be welcome news to others in a similar position with their land.

The decision in this case shows that “without force” should not be interpreted literally. It is not sufficient for the applicant to show that they have not used physical force; they must demonstrate that the use was not contentious. The legal owner can make their position known by displaying clear, visible signs prohibiting unauthorised use.

The key message here for clients is that when acquiring land with the benefit of a car park or access way that may be used by third parties, it would be prudent to ensure signs are erected and visible. Purchasers of such land should look to obtain a Statutory Declaration sworn by the previous owners regarding the length and location of the signage, with accompanying photographic evidence if possible. This simple measure could be invaluable in the face of any claim in relation to an easement over the land.

SME Solicitors have a wealth of experience of dealing with both residential and commercial aspects of land. For advice and assistance regarding the above or any aspect of owning, buying or selling land please contact us on 01905 723561 and we will be happy to assist you.

This article was written by Ellen Conry, Trainee Solicitor currently within SME Solicitors’ Residential Conveyancing team.


Added: 28 Feb 2017 15:02

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