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Prescriptive rights – whose land is it anyway?

29 May 2017

For prescriptive rights to arise over land, they have to have been exercised without force, secrecy or permission of the landowner.

Winterburn v Bennet

In the case of Winterburn v Bennett, the landowners (Mr and Mrs Bennett) were successful in claiming that steps they and their predecessors had taken prevented their land from being subject to prescriptive rights to use it as a car park.

Mr and Mrs Winterburn had operated a fish and chip shop since 1988, beside the entrance to a car park used by their suppliers and customers. The car park was owned by the Conservative Club Association who sold it, along with the club building, to the Bennetts in 2010. The Bennetts then let the building in 2012 to a tenant who obstructed access to the car park. The Winterburns objected and commenced proceedings claiming that they had acquired a prescriptive easement to use the car park for themselves, their suppliers and customers based on 20 years of uninterrupted use ‘as of right’.

Until 2007 there had been a sign on the wall of the car park which stated that it was private and only to be used by club patrons. A similar sign was displayed in the building’s window.

Unauthorised use

The issue was whether the signs erected by Mr and Mrs Bennett’s predecessors were sufficient to show that Mr and Mrs Winterburn’s use of the car park was unauthorised and therefore ‘with force’.

In this case the Court of Appeal overruled the decision of the lower court by deciding that the signs were a sufficient indication that the owners of the car park objected to use of their land by the Winterburns and others authorised by them. The signs were clearly visible to all users of the car park and clearly informed them that it was private.

There was no need for physical steps to be taken to prevent the unauthorised use, or for legal proceedings to be commenced or solicitors’ letters to be sent to prevent prescriptive rights arising.

Similar signs can also assist in defeating any claim for registration of land as a town or village green. Signs will be binding even if the unauthorised users remove them when reasonable steps are taken to reinstate them.

Oxford graduate Robin Beckley leads our agriculture & estates department. Well-known for his expertise, Robin has many years’ experience in advising on all aspects of agricultural law including the Basic Payment Scheme, agri-environmental schemes, farm business tenancies and sporting rights. 

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