A sign that use is unauthorised: are notices sufficient to prevent a prescriptive easement arising?Print publication
In the case of Winterburn v Bennett the Court of Appeal considered whether a land owner could prevent someone claiming an easement over their land merely by the placing of notices indicating that the land was for private use only. The decision reach was that such notices evidence that use is contentious and may be sufficient to prevent an easement from arising by prescription. A landowner is not required to take physical or legal steps to prevent the unauthorised use of their land.
What is an easement?
As discussed in the right to recreation article we published earlier this year an easement is a right benefitting a piece of land (the dominant land) that is exercised and enjoyed over another piece of land owned by a third party (the servient land). To exist as an easement a right must have the following characteristics:
- There must be dominant land (to enjoy the benefit of the easement) and servient land (over which the easement is exercised)
- The right must accommodate or benefit the dominant land
- The dominant and servient land must be owned by different people
- The right must be capable of forming the subject matter of a grant.
How are easements created?
Easements can be created in a variety of ways, including via prescription – a method of creation which involves using the land in a manner that is capable of existing as an easement for a sufficiently long period of time. Prescription derives from an underlying principle of law that exercising a right for a long period of time without interference should be capable of being legitimised. Prescription is also based on an, often false, presumption that the right in question originally derived from a grant.
An easement may, broadly speaking, be acquired by prescription where:
- The owner or occupier of the dominant land has used the servient land in a manner that is capable of existing as an easement;
- The use has been ‘as of right’, that is without force, without secrecy and without permission;
- At the time of the presumed grant there was a competent grantor and competent grantee;
- If there had been an express grant it would have been lawful; and
- There is no obvious explanation for the use other than a presumed grant.
In the case of Taylor v Betterment Properties (Weymouth) Limited and another  the Court of Appeal upheld a decision of the High Court to cancel the registration of a town or village green. The Court of Appeal confirmed that signs place on the land in question stating that trespassers should keep out were sufficient in number, location and clarity of wording to make it plain to any reasonable user of the land that their use was contentious. The signs meant that use was not ‘as of right’ and so it should not have been registered as a town or village green.
Land comprising a car park belonged to the Conservative Club Association (the Club) and served the nearby club house. The Club had used the club house and car park for many years, selling them to Mr and Mrs Bennett (the Bennetts) in 2010. Close to the entrance to the car park was a fish and chip shop owned by Mr and Mrs Winterburn (the Winterburns). The Winterburns originally occupied the shop as tenants, taking a 20 year lease in 1992 and subsequently buying the freehold in 2007. From the time when the Winterburns started running the fish and chip shop until 2012, when access to the car park was prevented, suppliers had used the car park when making deliveries to the shop and customers parked on the land when buying food.
For the most part the use of the car park by customers and suppliers of the fish and chip shop did not interfere with the Club’s operations but there were a dozen or so occasions when the steward of the Club asserted that the Winterburns and their customers and suppliers had no right to park on it. The steward also alleged that some customers were parking in a way that obstructed the patrons of the Club.
At all times until 2007 a sign, clearly visible to anyone entering the car park either by vehicle or on foot, was in situ at the entrance to the car park confirming that it was private and for the use of Club patrons only.
The Winterburns claimed that they had acquired a right to park cars and other vehicles belonging to them, their suppliers and customers by prescription and the First-Tier Tribunal held that their claim was successful. The Upper Tribunal allowed the Bennetts’ appeal and the Winterburns subsequently appealed to the Court of Appeal.
The Winterburns’ appeal was dismissed by the Court of Appeal.
In order to establish a prescriptive easement to park, the Winterburns had to show 20 years use as of right. The crux of the issue in this case though was whether that use was without force as it was clear from the facts that the parking was done in an open manner, was known to the Club and did not have their permission.
To establish use without force, the person claiming the easement must do more than show that they have not used violence, they have to prove that their use was not contentious. The issue was whether the presence of signs stating that the car park was private was sufficient to render the wrongful use of the car park contentious.
The parties were in agreement that the same principles that determine whether use is as of right apply to both town and village greens and easements acquired by prescription and therefore, following the decision in Taylor v Betterment the Court of Appeal held that the signs put up by the Club were sufficient to mean that parking by the Winterburns, their customers and suppliers was contentious.
The court confirmed that where a land owner has made their position on the use of their land by a third party obvious by erecting clearly visible signs, unauthorised use cannot be as of right. The owner of the land has made their position clear and does not need to take any further steps, or be prepared to back their objection by physical obstruction or bringing legal proceedings. The Court of Appeal did not see why parties who choose to ignore an obvious objection to their use of land, with such objection demonstrated by appropriate signage, should be entitled to obtain legal rights over the affected land.
This case is a helpful reminder that for an easement to be claimed by prescription the person making the claim must be able to demonstrate that their use is without force and furthermore, provided that a land owner has made it clear that such use is unauthorised by erecting signage, the land owner will, in many instances, be in a position to defeat that claim.
The Court of Appeal demonstrated in this case a particular sensitivity to the fact that many people will not be in as position to physically restrain the use of their land. Most people do not seek confrontation and may in some cases be frightened of doing so and many people will not have the means to bring legal action to prevent the use of their land. As such, the erection of signs is a peaceful and inexpensive means of making it clear that property is private and preventing the acquisition of rights by third parties.
 Established in the case of Re Ellenborough Park  EWCA Civ 4.
  EWCA Civ 250