A recent case means that landowners may be able to prevent trespassers from acquiring a right of way by prescription by the erection of notices proclaiming that the land is private. Landowners, particularly of rural land, can be vulnerable to trespassers acquiring an easement over their land by prescription. Any rights secured against that land could reduce its value and prevent the land being used free of restrictions.
In 'claiming a right of way by prescription' we outlined the requirements that a trespasser must fulfil to obtain a right of way by prescription (i.e. long historical use). By way of a reminder, a trespasser has to establish that the land has been used “as a right” and therefore “without force, without secrecy and without permission” for over 20 years.
‘This land is privately owned’
It is particularly difficult for rural land owners to police large holdings regularly and prevent trespassers from acquiring a right over their land before it is too late. However, a recent Upper Tribunal decision has been touted by some as providing a welcome solution.
In the case of Winterburn v Bennett  UKUT 0059 (TCC) the Tribunal held that erecting signs addressed to the world at large explicitly stating that the land was private and that any unauthorised use was prohibited, would qualify as sufficient protest on the part of the landowner to prevent a trespasser from acquiring a right of way by prescription. By trespassing over the land under protest, the trespasser could not establish that he had used the land “without force”.
In this case, customers and the wholesale suppliers of a fish and chip shop regularly parked their vehicles on an adjacent car park owned by a social club and its members. The customers and wholesale suppliers claimed that they had acquired a right to use the car park by way of prescription as they had used the car park for more than 20 years “without force, without secrecy and without permission”.
Opposing the claim for prescription, the social club relied on, amongst others, two clearly visible signs stating that the car park was private and for the use of club’s members only. Upon appeal, the Upper Tribunal held that those signs were a sufficient objection which prevented the use of the car park peacefully. The Tribunal held that the use of the car park was under protest and by force which did not meet the requirements of a claim in prescription.
Avoiding land use ‘as of right’
On the face of it, the decision suggests that, by erecting warning notices proclaiming that the land is private and for the landowner’s exclusive use, would-be trespassers will be prevented from acquiring rights in prescription over the land because such use would be under protest and therefore with force.
The reality however is that, in claims to establish prescriptive rights, the Court will regularly examine the parties conduct throughout the entire 20 year period during which the land has been used “as a right”. Each case will be judged on its own merits, having regard for the particular facts in the case.
In Winterburn v Bennett, the Court concluded that it was immaterial that the owners of the social club had not taken further steps to oppose the use of their carpark. This does not mean a Court in different circumstances would not have expected a landowner to have taken further steps.
In other cases, the Court may insist on clear evidence that the trespass has been exercised by force, and the landlord, signs or no signs, acquiesced to the trespass by failing to take further steps to oppose the trespasser.
Landowners should still remain vigilant and take advice in connection with trespassers who are trespassing over their land. Erecting signs that clearly mark the land as private and actively opposing access over the land will undoubtedly improve a landowner's prospects of opposing a claim for an easement by prescription.