Since the introduction of the Protection of Freedoms Act 2012, 7 years ago, it has been an offence to clamp, tow, block-in or immobilise a vehicle without lawful authority on private land. Whilst this was intended to protect motorists from unscrupulous private parking enforcement companies, it had the unexpected effect of enabling unscrupulous motorists to park on private property (including the driveways of houses) with little effective recourse for the property owner.
Whilst this is not a widespread problem, it does help highlight a risk to property owners who do not regularly monitor their property for unauthorised parking. In certain circumstances, it may be possible for a motorist to claim a permanent right to park on land that does not belong to them.
A Summary of the Law
If a person uses someone else’s land without using force, openly and without the owner’s permission for an uninterrupted period of 20 years, then that person may apply to the Land Registry to gain a legal right to continue to use the land in perpetuity. This is known as acquiring an easement “by prescription”. Most commonly this relates to rights of way but rights to park can also be acquired in the same way.
Winterburn v Bennett
The 2016 Court of Appeal case of Winterburn v Bennett provided a practical, simple and cheap solution to this potential problem.
Mr & Mrs Winterburn’s fish and chip shop was next door to the local Conservative Club. The Club had a large car park. Over 20 years, suppliers and customers of the Winterburns’ shop used the Club’s car park despite being asked not to by the Club steward and a sign on the wall next to the entrance of the park that read “Private car park. For the use of Club patrons only. By order of the Committee.” A similar sign was also displayed in the Club’s window. At the hearing, the Winterburns and the Club agreed that these signs had been ignored.
The Winterburns claimed they had acquired an easement “by prescription” over the land and should be allowed to continue to use the land for parking. The Court determined that the Club only needed to show that the use of the land was “contentious” to demonstrate that it had been used with force. Use of the land with force would prevent the Winterburns from acquiring an easement “by prescription”.
The Winterburns argued that as the signs and warnings had been ignored by them and their customers for so long without the Club writing to this effect or getting a court order, the Club was unable to show that the use of the land was “contentious”. In spite of this, the Court said that it shouldn’t be necessary for landowners to go to such lengths and that peaceful and inexpensive measures such as appropriate signs are enough to show that the land is private and not to be used by others.
What Can Landowners do to Stop Rights to Park?
As a result of the Winterburn v Bennett case, visible signs will be enough to prevent people from acquiring a prescriptive right to park over land belonging to someone else, even if the signs are ignored.
Land that is not registered at Land Registry is also at a higher risk of prescriptive rights being registered against it, as notice of the application will not be served on the land owner. It also highlights the importance of land owners ensuring that the address for service held by the Land Registry for registered land is always up-to-date, as otherwise notice of an application will be sent to an incorrect address.
For advice on property disputes relating to parking on private land, get in touch with Farleys Solicitors on 0845 287 0939 or submit your enquiry through our online contact form.
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