Avoiding prescriptive easements: is it enough to display a sign?

The recent case of Bennett v Winterburn [2015], considered whether a landowner can display a sign prohibiting use of its land in order to prevent an adjoining landowner from acquiring a prescriptive easement.

An easement over land can be acquired by prescription if an adjoining landowner can show that it has used the land “as of right” and “without interruption” for 20 years.

For the use to be “as of right”, the adjoining landowner must show that it has been neither by force, nor stealth, nor permission.

In Bennett v Winterburn, the courts considered whether signage that had been erected meant that use had been by force.

The customers of a chip shop in Keighley, West Yorkshire had used the car park of an adjoining Conservative club to access the shop on foot and to park their cars for over 20 years. The club steward and committee were aware of this usage and, bar a few minor altercations, said they had no problem with it.

However a dispute arose and the club argued that the chip shop had not acquired any prescriptive easements. They sought to rely on two signs that were on display stating that the car park was private and for the use of club patrons only. They argued that these signs showed that the use by the chip shop customers was contentious, i.e. it was by force and therefore not “as of right”.

The Upper Tribunal held that the use of the car park as a pedestrian right of way was “as of right”, whereas the use of it for the parking of cars was not.

This case turned on the wording of the signs. The fact the car park was expressed to be private meant it was clear to non-club patrons that they could not park their cars there. However, as the signs did not deal with pedestrian access, there was nothing to suggest they could not cross the car park on foot.

The significance of this case for landowners is that they can erect prohibitory signage addressed to the world at large to prevent adjoining landowners from acquiring prescriptive easements. However, they would be well-advised to ensure that such signage contains unambiguous language and makes it clear what uses the landowner objects to.

Furthermore, the judge acknowledged that signage can become redundant although he did not give examples. We assume that where signs are frequently ignored in a manner to which the landowner acquiesces then the use of the land will not be considered contentious and so not by force. There is, of course, also the danger that signs may become displaced or overgrown.

The club have obtained permission to appeal to the Court of Appeal so landowners should watch this space. As things stand, they can rely on a well-worded sign to prevent prescriptive easements arising but such passive behaviour is risky.

Written by James Ankers

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