"Most people do not seek confrontation… Most people do not have the means to bring legal proceedings."
And nor should they have to, states the very sensible judgment in Winterburn v Bennett, a recently heard case concerning rights to use a private car park.
Mr and Mrs Bennett owned a former club building and car park in West Yorkshire. The car park was, at all times until 2007, bedecked with clearly visible signs stating that it was private and for club patrons only. Mr and Mrs Winterburn owned a neighbouring fish and chip shop whose suppliers and customers regularly parked in the club car park, ignoring the signs. When in 2012 the Bennetts' tenant obstructed the car park entrance, the Winterburns objected on the basis that they had accrued rights to use the car park by prescription due to their long use of the land.
To establish an easement by prescription, it must have been exercised for at least 20 uninterrupted years "as of right". This means it must have been exercised without force, without secrecy and without permission. There was no doubt in this case that the Bennetts were aware of the Winterburns' use of the car park and had not granted permission. The main issue, therefore, was whether the use was "without force".
The judgment makes clear that the concept of "without force" is much wider than the wording suggests. The owner does not necessarily have to take physical steps or legal proceedings to prevent the wrongful use of land. All that is required is for the use to have been contentious or allowed only under protest. The fact that there were clearly visible signs in the car park which made the Bennetts' position transparent meant that the Winterburns' use was obviously contentious. Because of this, the use was not "without force", and could not therefore be "as of right".
This will be a welcome decision for landowners: although there are several methods of preventing an easement accruing by prescription, clear and visible signs making it clear that the property is private and not to be used by others may in many cases be enough.
If you require further information on anything covered in this briefing please contact Shona Ferguson (firstname.lastname@example.org; or 020 3375 7301), Paul Krafft (email@example.com; 020 3375 7442) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, October 2016