Recent decision about preventing a right of way over land by putting up notices

In the recent case of Bennett and another v Winterburn and another the Court was required to decide whether a landowner can prevent someone from claiming a right of way (known as an easement) over their land just by putting up notices stating that the land is for private use only. An easement can arise “by prescription” when a right of way has been exercised over land for at least 20 years without force, secrecy or permission.

The Court decided that such notices may well be sufficient to prevent an easement arising by long use. The Bennett case concerned a right of way over a car park adjoining a fish and chip shop. The owners of the car park put up clearly visible signs stating that it was a private car park for use by its patrons only. This was found to be a “sufficient and proportionate” warning against the use of the car park by the fish and chip shop customers. There was no need for them to put up further signs when it was clear that the original ones were being ignored. This is a common sense decision preventing those who ignore signs from obtaining legal rights over land.

The result provides landowners with comfort that, in most cases. they do not need to take costly or confrontational measures, whether physical or legal, to stop unauthorised users of their land. The principles that this case highlights are equally relevant to our farming, landowner and commercial clients.

The key point to take away from this case is that, as long as signs are visible and clear, they are likely to be sufficient to prevent a right of way being created. If you think there is any risk of unwanted rights arising over your land, however, we would recommend that you obtain legal advice as soon as possible to prevent any more permanent rights being created, which might affect the value, saleability or development potential of your property.

Fenella Eddell is a solicitor in the property department at Barker Gotelee, Suffolk solicitors.

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