Here are three personal questions:
- Do you avoid confrontation?
- Do you enjoy fish and chips?
- Are you worried about a neighbour acquiring rights to park on your land, without your permission?
If your answers to (1) and (2) are both “yes”, you will enjoy this note. If your answer to (3) is “yes”, you must read this note.
Most people do not seek confrontation” observed a Court of Appeal judge recently “and in many cases they may be concerned or even frightened of doing so.
After all, if one asserts ones rights, there is a risk of getting battered.
The trigger for these comments was a dispute between the owners of a car park servicing a social club and an adjoining fish and chip shop.
For over 20 years, suppliers making deliveries to the fish and chip shop parked their vehicles on the car park. And customers parked there while they bought their fish and chips. The car park’s owners had never given permission for this parking. On the whole, the parking did not interfere with the club’s activities. But there were some complaints of obstruction; parking in the wrong place at the wrong time.
The car park’s owners had not skated over the problem.
For the first 19 years or so of the parking, there were two signs on display. One was attached to the wall of the building on one side of the car park entrance. The other was in the window of the social club. Both signs were clearly visible from the car park and read:
Private car park. For the use of Club patrons only.By order of the Committee.
The issue was what steps must the car park owner have taken to stop the fish and chip shop owner from acquiring rights to park, without permission? Was the display of the signs sufficient to stop rights being acquired by long term use?
The shop owner had to show 20 years uninterrupted use as “of right”, meaning without force, secrecy and permission. Here, there was no suggestion of secrecy; the parking was open and known to the club. And no permission had been given. So the Court had to decide what “force” meant.
“Without force” does not just mean without violence. The shop owner had to show that the parking was not contentious or allowed only under protest. Having trawled the case law, the Court said that the owner did not have to obstruct physically the car parking nor did it have to bring legal proceedings to stop further parking. In a case in 2012, the Court had held that the continuous presence of legible signs had been sufficient to stop privately-owned land becoming a village green. The signs in that case rendered the use of the land by the public “contentious”. The same principles applied to the acquisition of private property rights by long use.
In the present case, there were two signs clearly visible to all users of the car park and clearly informing all users that it was a private car park for the use of Club patrons only. That was sufficient to make the parking “contentious” and not “without force”. Therefore, the signs were sufficient to prevent the shop owner from acquiring legal rights to park.
“Most people” said the judge “do not have the means to bring legal proceedings. There is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs”.
Winterburn and another v Bennett and another  EWCA Civ 482 , 25 May 2016 Court of Appeal
If you are worried that a third party is using your land to park or for access without your permission, you should act without delay. Putting up and maintaining a clearly visible sign or signs may be a peaceful and cheap solution. If you want to discuss how to protect yourself against third party rights contact me at email@example.com.