A right of way can be claimed over land through prescription. That involves using the way for a sufficiently long time without the consent of the landowners. This is a particular problem for landowners who will not always be aware of one or more individuals using a particular way over land.
Previous Court decisions have found that placing signs on land telling trespassers to keep out would make it plain to any reasonable user of the land that their use of it was contentious and that was so even though the signs were removed or destroyed. The question addressed by the Court of Appeal in Winterburn v Bennett was whether a landowner could prevent someone claiming a right over the land merely by placing notices indicating that the land was for private use only.
In order to establish a right of way or a right to park by long use, an applicant must show twenty years uninterrupted use. That use must be “as of right” and “without force”. The Court decided that it was not enough for the person claiming the right to show that it had not used violence. It had to go further and show that its use was not contentious.
The Court of Appeal decided that where a landowner had made its position on someone else’s use of land obvious through clearly visible signs, the unauthorised use could not be said to be “as of right”. In a decision that will be welcomed by landowners the Court found that the landowner is under no obligation to take further steps such as writing letters, confronting users verbally or instigating legal proceedings. Putting up an appropriate sign is a peaceful and inexpensive way of making clear that land is private and not to be used by others. The Court of Appeal failed to see why those who ignored those signs should be entitled to obtain legal rights over the affected land.
Note : For signs to be effective in preventing someone from acquiring an easement by long use, the signs must be sufficient to make the position clear to those using the land.