Notices displayed by landowners informing the public that their land is private are sometimes ignored and the land continues to be used by members of the public.
In the Court of Appeal case by Winterburn v Bennett [2016] EWCA Civ 482 it was questioned as to whether the public became entitled to use the land by way of prescription despite there being private land notices. To be entitled to use the land by prescription means that the user gets an easement (a non-possessory interest in real property that provides the holder with the right to use another party's real property for a specific purpose) by exercising a right over the land for a long period of time, without interference. In this case, a club house car park was regularly used by customers of the neighboring fish and chip shop despite there being clear notices stating that it was a private car park only to be used by club members. The fish and chip shop claimed that they were entitled to an easement for parking by prescription.
The Court of Appeal considered whether the use of the land by the fish and chip shop customers was “as of right” meaning without force, without secrecy and without permission. It was satisfied that the land was used openly and without permission however, the Court held that the notices were sufficient to prevent the fish and chip shop’s claim for an easement by prescription. As the landowner had displayed notices making it clear that the land was for private use, an unauthorised use of the land cannot be “as of right”. Those who were not entitled to use the land and ignored the notices should not be entitled to a legal right over the land. There was no obligation on the owner to take further steps, such as writing letters or confronting the users.
It is therefore important that landowners ensure that any notices regarding their land are sufficiently clear.