Preventing rights being acquired over your land – A recent case brings good news for landowners

Most landowners will be familiar with stories in the press of squatters’ rights or adverse possession. Fewer will be aware that neighbouring landowners can acquire other rights to use or access someone else’s land, simply by using it for twenty years, without agreement or any form of permission.

Landowners unfortunate enough to be on the receiving end of a successful claim by virtue of twenty years’ use, will be aware that such rights can impact negatively upon the use, value and development potential of their own land. However, a recent case represents a positive change for landowners by clarifying the law in this area and more importantly, making it easier to prevent such rights arising in the first place.

In the case of Winterburn v Bennett, the Upper Tribunal indicated that a landowner does not need to protest directly against the use of its land in a way that brings their objection to the attention of the trespasser, such as writing to them or approaching them directly. Instead, it is only necessary to place a sign or notice declaring the land as private.

This particular case involved the customers and suppliers of a fish and chip shop parking on an adjacent car park belonging to a Conservative club for more than twenty years. The customers and suppliers used the club’s land openly, but without permission from the owner of the club. The club had placed two signs stating that it was a private car park for use of club members only.

In an earlier hearing the Tribunal Judge held that an easement had been created because the signs were not sufficient to protest the specific use by the fish and chip shop. However, the Upper Tribunal disagreed and held that the signs were addressed to the world at large and having been put in place before the twenty year period began, they were sufficient to prevent a right to park arising.

As a result of this decision, landowners may wish to place notices and signs at appropriate places on their land. Landowners who have already taken this step can take some assurance that the courts have held this to be sufficient protection in most cases.