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26th September 2016

Visible signage can defeat a prescriptive right of way arising

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What are easements and how do they affect land owners?

An easement is a right over a piece of land that benefits another piece of land.

The common example given is a right of way, such as that might allow access over a neighbour’s property, but these could also include drainage rights, rights to light and others.

Easements can be expressly granted, for example through a deed. An easement can also be impliedly created, for example by necessity where a portion of landlocked land has been sold off by a land owner. Rights of access may then come into being over the remaining land. Lastly, an easement can be acquired through prescription, effectively long use.

For prescriptive rights to come into existence a number of conditions must be satisfied. These conditions include that the rights must be capable of becoming an easement, they must have been exercised for a set period, generally twenty years, and the right must have been exercised without force (including protest), secrecy and without permission. A property owner can therefore prevent prescriptive rights being granted by either registering a sufficient objection or by providing consent. Force, however, is not confined to physical violence. The person who asserts the right must show that his user was not contentious or allowed only under protest. If the owner registers a proportionate and adequate protest, prescriptive rights will not arise.

Recent developments

In the recent case of Winterburn v Bennett [2016] the Court of Appeal has made clear that registering an objection does not necessarily require either erecting a physical barrier or taking proceedings. Clearly visible and unequivocal signs can amount to a sufficient objection for the purposes of protesting and preventing the acquisition of prescriptive rights.

In that case deliveries to, and customers of, a fish and chip shop parked in the private car park of a neighbouring club premises over a period exceeding 20 years. The neighbouring owners had put up a clearly visible sign saying: “Private car park. For use by club patrons only. By order of the Committee” It had been consistently ignored throughout the period of use by the shop patrons. The Court of Appeal held that objections either by physical obstruction or by legal action, such as letter or proceedings, was not required and the erection and re-erection of signs was all that the owner needed to do to bring to the attention of those using the land that they were not entitled to do so and thus prevent the acquisition of prescriptive rights. The Court found that the situation was one which can affect millions of property owners in the country, many of whom would avoid confrontation at all cost and may not have the means to pursue litigation. In light of such practical considerations and previous case law, it was found that an objection to the use and acquisition of such rights can be satisfied by the peaceful and inexpensive use of clear signage. No further action; although this would clearly emphasise an objection.

Points to Note

Signs can be sufficient to make the parking of cars contentious and prevent a prescriptive right of way being granted. The use of visible and unequivocal signage, a less drastic, confrontational and expensive alternative to erecting physical barriers and litigation, to prevent easements forming through long use has been recognised as effective by the courts.

For more information please visit our Dispute Resolution and Litigation Page or contact Anna Gora on 01604 233233 or click here to email Anna.