Trespassers who ignored prohibitory notices had not acquired prescriptive rights over the land on which they were parking

Landowners can acquire prescriptive rights over a neighbour’s land, for the benefit of their own, if they can show uninterrupted use “as of right” for a period of not less than 20 years. User is not “as of right” if it is forcible, secret or permissive, because it would not be reasonable to expect a landowner to resist the use that is being made of his land in such circumstances. Bennett v Winterburn [2016] EWCA Civ 482; [2016] PLSCS 154 concerned a claim by the owner of a fish and chip shop to prescriptive rights of way and parking for himself, his customers and suppliers. The car park over which the rights were claimed belonged to a club, which had displayed a notice, in plain sight of anyone entering the car parking area, saying “Private car park. For the use of club patrons only. By order of the committee”. However, the notice was ignored, as were protests from club representatives who complained to the proprietor of the fish and chip shop from time to time. The use was not secretive and it was without permission. But was it without force? For the purposes of the law of prescription, the term “force” has a wide meaning. Users must show that their use has not been contentious or allowed under protest. Was the use of the car park contentious in this case? The owner of the fish and chip shop argued that, to counter any suggestion of acquiescence, a landowner must resist the use that is being made of his land. Alternatively, if reliance is placed on protests against such use, they must be continuous and unmistakeable. Did the notice on display at the entrance to the car park suffice to render the use contentious? Or should the club have taken additional steps to make its position clear – by placing a chain across the entrance to the car park, by writing formal letters of complaint to the owner of the fish and chip shop, or by issuing legal proceedings – because it was obvious that the signs were being completely ignored? Landowners will welcome the Court of Appeal’s decision. It noted that few people have the financial wherewithal to bring legal proceedings and rejected the notion that it is necessary for landowners, having made their protest clear, to take further steps to confront any wrongdoers, whether orally or in writing. There is a social cost to confrontation and their Lordships agreed that, except when absolutely necessary, the law of property should not require landowners to confront others in order to retain and defend what is theirs. Therefore, unauthorised use of land cannot be categorised as being “as of right” if a landowner has erected signs in a visible position, which make his position clear. The club’s notice had been clearly visible to all users. Any reasonable person would have understood that the club objected to other people parking on its land – and the court did not see why users who choose to ignore such signs should benefit by obtaining legal rights as a result.   Allyson Colby is a property law consultant