Problems with prescription (Winterburn v Bennett [2016] EWCA Civ 482)

All conveyancers will be aware that an easement can be acquired by prescription i.e. by simply using the ‘right’ over a long period – basically a minimum of 20 years. But as a recent case reminds us the law surrounding prescription is so complex that it isn’t just a case of proving 20 years’ use.

Winterburn v Bennett [2016] EWCA Civ 482

One aspect of the law on prescription is that the use has to be ‘as of right’ – without force, without secrecy and without permission. What if there are prohibitory notices on the land being used? Do they prevent the creation of an easement if the users ignore them? Or if you are the owner of the land being trespassed upon, can you prevent the acquisition of an easement by putting up such notices?

This case involved the car park at the former Keighley Conservative Club. Adjoining the car park was a fish and chip shop owned by the Appellants. For more than 20 years suppliers’ lorries had parked in the car park to make deliveries. Similarly, customers of the shop had parked there whilst they bought their fish and chips. During this period of use there was a sign attached to the wall of the building on one side of the entranceway to the car park. It had been erected on behalf of the Club and read: “Private car park. For the use of Club patrons only. By order of the Committee”. The First Tier Tribunal found that it was “clearly visible to anyone entering the disputed land, whether on foot or by vehicle.”

After the Respondents purchased the club premises, access to the car park was blocked off and the current proceedings resulted. The First Tier Tribunal upheld the claim to an easement, but on appeal, the Upper Tribunal rejected that claim. The Winterburns then appealed to the Court of Appeal. Was the user ‘as of right’ – without force, secrecy or permission?

In the present case, it is the element “without force” that is in issue. …The phrase “without force” carries rather more than its literal meaning. It is not enough for the person asserting the right to show that he has not used violence. He must show that his user was not contentious or allowed only under protest. This appeal is concerned with what constitutes protest on the part of the owner of the land for these purposes. …The issue in the present case is whether the continuous presence of legible signs stating that the car park was private property and for use by the Club’s patrons only was sufficient to render the use of the car park by the appellants and their suppliers and customers contentious.’

The situation which has arisen in the present case is commonplace. Many millions of people in this country own property. Most people do not seek confrontation, whether orally or in writing, and in many cases they may be concerned or even frightened of doing so. Most people do not have the means to bring legal proceedings. There is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs. The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land. (David Richards LJ)

So putting up notices does prevent the acquisition of an easement. But one final thought. This Court of Appeal decision was the third hearing involving this claim – just think of all the legal costs and stress and worry for all those concerned in this dispute. Hopefully, the final comments set out above from David Richards LJ will be help clients and lawyers alike to avoid any further similar disputes needing to go to court.

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