Can a sign prevent a right of way

The most common way to prevent third parties acquiring prescription rights over your property, that is rights obtained by custom or continued use, is to put up a sign or notice. However, the question of the effectiveness of such signs, is subjective.

For a right by prescription to occur in the first place it must be exercised by the claimant for a period lasting a minimum of 20 years without force, secrecy or permission.

A recent case Winterburn v Bennett [2016] (more commonly known as the chip shop case) explores this. The case concerns third party vehicles using an adjacent Conservative Club car park without permission. The property was to be developed and prescriptive rights would interfere with the development proposals.

Following the requirement for rights by prescription, the car park had been used by chip shop customers and deliveries for a period in excess of 20 years, despite signs stating “Private Car Park. For use of Club Patrons only. By order of the committee” being erected. In addition, the club sent their employees to the chip shop owner regularly to complain about the parking.

The question raised by the court was “whether the continuous presence of legible signs stating that the car park was private property…was sufficient to render the use of the car park by the claimants and their suppliers and customers contentious”.

The courts held that the unauthorised use was by force and therefore it unlawful. Richards LJ stated that “the erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others”.  Re affirming the neighbourly approach, the courts felt that the law “should not require confrontation” in order for people to defend and retain land which belongs to them, highlighting the importance of displaying suitable and clear signs.

So, in conclusion, why should landowners erect obvious signs to warn third parties?

The answer is that the courts will look favourably on landowners who actively control their property use and make it obvious to third parties that their use is or is not by permission.

At Frank Smith & Co Solicitors we would encourage all landowners therefore to take steps to identify any rights that are being enjoyed by third parties without permission and deal with them by erecting appropriate signage as a general rule.

For further information contact Frank Smith on 01242 801748

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