EASEMENTS:THE IMPORTANCE OF SIGNAGE TO PREVENT PRESCRIPTIVE EASEMENTS

An easement can arise by prescription (i.e. long use) if a trespasser shows 20 years’ use “as of right”: without force, without secrecy and without permission.

The Court of Appeal (following an earlier High Court decision) has considered the application of this in the case of Winterburn v Bennett [2016] EWCA Civ 482. It involved a local fish and chip shop’s customers and suppliers using the next door Conserative Club car park for parking, despite the existence of a clearly visible sign saying “Private car park. For the use of Club patrons only. By order of the Committee.” Following the obstruction of the parking area by the tenant of a new owner of the premises, the fish and chip shop owner claimed to have acquired a right to parking by prescription.

The question was whether the right was used “without force”, despite the presence of the signage: there was no doubt that the parking on the disputed land was open and known and that no permission for parking had been given.

The phrase “without force” means more than simply its literal meaning. The person asserting the right could not merely show that he had not used violence. Instead, they must show that their user was not contentious or allowed only under protest.

Here, where a land owner had made its position on someone else’s use of the land obvious through clearly visible signs, the unauthorised use could not be said to be “as of right”. The signs were by themselves sufficient to make contentious the parking of cars and other vehicles by the shop and its suppliers and customers. Helpfully, the court recognsied that there was no requirement on the land owner to elevate his protest, by writing letters or issuing court proceedings, recognising the social and financial cost in doing so.