09 September 2016

In the past landowners have faced difficulty when trying to prevent others from acquiring rights over their land, which can include a right of way on foot or in a car, or a right to park.  

To show that they have a prescriptive right, an applicant needs to demonstrate that they have used the land for the purposes of the right claimed without permission, secrecy or force for a period of twenty years.  

So what's changed? 

We now have additional clarity that if the use is clearly objected to by the landowner, that may be enough to prevent a right being acquired.  

Winterburn v Bennett was heard earlier this year by the Court of Appeal. In that case the Applicant fish and chip shop owners were claiming a right for their suppliers and customers to park in a car park which had, until 2010, been owned by the local Conservative Association.

New owners of the car park had blocked it off in 2012, to the dismay of the fish and chip shop customers.  

Although the fish and chip shop owners could demonstrate that their customers had regularly parked on the land over a lengthy period of time the car park owner had erected signs which stated that the car park was for private use only and parking was prohibited. The landowners had also repeatedly objected to fish and chip shop customers parking in the car park.    

This rendered the exercise of the right contentious. The fish and chip shop’s claim was defeated.

What does this mean for me?

If you are a landowner and concerned that someone may be using your land without your permission this provides some guideline about what you need to do to show you object – put up and maintain clear signs. 

This is particularly relevant in a rural or agricultural context where rights may be acquired over a lane or access way and where the acquisition of those rights will cause difficulty for you – perhaps making access to one of your fields more difficult or partially obstructing the access to it.  

Putting up and maintaining clear signs and ensuring that you object every time that you find out someone is using your land will help to avoid rights being acquired by prescription.  

This article was written by Maddie Dunn, Solicitor. 

Key contact

Kevin Kennedy

Kevin Kennedy Partner

  • Estates and Land
  • Private Wealth
  • Agricultural Disputes

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