Where a neighbour claims a right of way over a landowner’s land by long use, does it matter that the use has not been by them, or their agents, but instead, for example, by their customers such that it would not have been possible for the landowner to sue the neighbour for trespass?
In fact there had been no trace in case law of a requirement that the use relied on by the neighbour must amount to a trespass by the neighbour against the landowner.
All that had been required was that the landowner should have been in a position to challenge or stop the use e.g by erecting a gate or barrier across the roadway.
It is enough that the use in question benefits the neighbour’s property for that property to acquire the right of way by long use. The fact that it was also beneficial to a customer to deliver or collect across the landowner’s land does not alter the fact that it is the neighbour’s property that benefits from that use.
‘It is sufficient that the use accommodates, or benefits, the dominant land, in the sense of being closely connected with the normal enjoyment of the dominant land’. (Lord Neuberger M.R in London Tara Hotel Limited v. Kensington Close Hotel Limited  ).
So in the recent Upper Tribunal (Tax and Chancery) case of Bennett & Anor v Winterburn & Anor  where a fish and chip shop claimed vehicular and pedestrian rights of way by 20 years’ plus use across a Conservative Club Car Park, the fact that it had been customers doing this was no barrier to their use gaining the fish and chip shop rights of way across the car park by long use.
However in Winterburn & Anor v Bennett & Anor  the Court of Appeal has ruled that the acquisition of pedestrian and vehicular rights of way was prevented by the sign “Private car park. For the use of club patrons only. By order of the committee” plainly visible to anyone entering the car park from the road.
Circumstances must indicate to persons using the land that the owner objects and continues to object to the parking.
The issue is whether the owner has taken sufficient steps so as to effectively indicate that the unlawful use is not acquiesced to.
In this case, the presence of the signs clearly indicated the owner’s continuing objection to unauthorised parking.
The protest needed to be proportionate to the use. But the continuous presence of the signs asserting that it was private property for use by the Club’s patrons only was a proportionate protest.
The chip shop owners argued that the signs were being ignored and it had been incumbent on the owner of the land to take such further steps as were practicable to prevent the land being used for parking.
The Court of Appeal said nothing in legal precedent or in principle required an owner of land to erect a chain across the entrance to their car park, or object orally, or write letters of objection, or threaten or commence legal proceedings to prevent the wrongdoers from acquiring a legal right. Where the owner had made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land could not be said to be “as of right”.
Having made his protest clear, the owner need not take further steps of confronting the wrongdoers known to him orally or in writing, still less need they go to the expense and trouble of legal proceedings.
The majority of people do not seek confrontation, whether orally or in writing, and may indeed be concerned or frightened of doing so. Most people do not have the resources to bring legal proceedings. Unless absolutely necessary, the Law of Property should not require confrontation to enable people to retain and defend what is theirs. The erection and maintenance of an appropriate sign was a peaceful and inexpensive means of making clear that property is private and not to be used by others. People who chose to ignore such signs should not be able to obtain legal rights over land in that way.
This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.