The Upper Tribunal (Tax and Chancery Chamber) has allowed in part an appeal concerning the acquisition of easements by prescription, and considered the effect of notices seeking to deny that right, in a decision that will be welcome to landowners.
The respondents in the case owned a fish and chip shop adjacent to the appellants’ property (a Conservative Club) which included a car park. The respondents’ customers and suppliers parked in the car park and customers walked across it to get to the respondents’ shop.
The appellants had put up notices, before the respondents started using the car park, stating “Private car park. For the use of club patrons only. By order of the committee”.
Prior to the appeal, the First-Tier Tribunal found that the respondents had acquired prescriptive rights (on foot) over the car park and with vehicles (to park) for the benefit of themselves, their customers and licencees due to long user (20 years) as of right.
In respect of the notices, the First-Tier Tribunal held that as they had been put up before the respondents’ use started, they were not specifically aimed at the respondents, their customers and suppliers.
The appellants’ appeal was based on two arguments:
1. That the time for prescription to run only began once the servient owner could have brought a claim for trespass. The trespass by the respondents’ customers would not bring about a claim against the respondents as their customers are not their agents; and
2. That the signs prevented the use of the car park for parking from being “as of right”. The parking was not peaceable but by force.
The Upper Tribunal held that there was no need for the servient owner to be able to bring a claim in trespass in order for the time to start to run for prescriptive rights. Although the respondents’ customers benefitted by using the car park for pedestrian access, their use ultimately benefitted the respondent’s land. Accordingly, the Upper Tribunal agreed that the respondents’ land had acquired prescriptive rights by foot over the car park.
However, in respect of the right to park, the Upper Tribunal held that the notices had been clear throughout the period of use in question. It was irrelevant that the notices pre-dated the respondents’ use or that the signs were not specifically directed at the respondents (or their customers/suppliers). The signs were unambiguous and therefore the continued use was not peaceable. The use was not “as of right” and the owner of the servient land did not need to take any more action, such as placing stickers on parked cars or writing to the respondents to complain. This case suggests that appropriate notices may assist in defeating a claim for prescriptive rights, rendering use by force, and therefore not “as of right”, and landowners may want to consider putting up notices at appropriate places on their land. Permission to appeal to the Court of Appeal was granted, however, which may alter the position.
In the meantime, you can read the full case report by clicking here:
by Amy Rogers, Associate