Steps that landowners can take to prevent others from acquiring rights over their land
The case concerned a private car park, which had been used since 1987 by visitors to the neighbouring fish and chip shop. In 2012 the owners of the car park blocked vehicular access
The case of Winterbourne v Bennett concerned a private car park, which had been used since 1987 by visitors to the neighbouring fish and chip shop.
In 2012 the owners of the car park blocked vehicular access. The owners of the chip shop complained, claiming that they had acquired the right to use the car park by long use.
To acquire rights by prescription, a person must show uninterrupted use of the land 'as of right' and without force, secrecy or permission for at least 20 years.
The Court of Appeal summarised the law in this area and confirmed that:
- 'Without force' is not to be taken literally. The expression simply means that the use must not have been contentious or have been allowed under protest.
- Use will not be 'without force' if the landowner has clearly and repeatedly expressed opposition to the use of the land.
- The landowner is not required to do everything within his means to object to the use of his land. He is not required to make continuous protest, to escalate the objection, to physically interrupt the use, or to commence legal proceedings to defend his rights.
- The landowner's opposition need only be reasonable and proportionate to the scale of the problem faced. Where there are different users each day (such as visiting public), signs may be a proportionate response.
In this case, the car park owner had erected two signs which stated that the car park was for private use only, and had on at least a dozen occasions personally objected to customers using it. This was enough to defeat the chip shop's claim.
This case highlights that it is possible to prevent others from acquiring rights over your land but it is a reminder that clear steps must actually be taken and that landowners must be careful not to acquiesce in unauthorised use of their land.