Clear signage should stop trespassers acquiring rights

“Keep-off” signs are a vital tool for property owners who need to stop unauthorised parking and prevent trespassers gaining formal legal rights over their land – Winterburn v Bennett [2016].

Background

For many years the customers and suppliers of a chip-shop in Keighley, West Yorkshire had used part of the car park of the neighbouring Conservative Club to park while making deliveries or buying their fish and chips. Occasionally the steward of the club had complained and pointed out that there was no right to park. Throughout the relevant period there had been a sign up indicating that parking was for patrons of the club only. In 2010 the Conservative Club sold their building to Mr and Mrs Bennett. In 2012 the Bennetts let the building and the car park to a tenant who closed off access and prevented the unauthorised parking. Eventually Mr and Mrs Winterburn, who owned the chip shop, brought an action claiming that they had, over the years, acquired a legal right for their customers and suppliers to park on the Bennetts’ land.

To be successful the Winterburns had to show that for more than 20 years the parking had been “as of right”, that is, without force, openly and without permission. From 1998 until 2007 their customers and suppliers had been parking openly and without permission, but was it without force? If force meant violence then yes, but, in its decision of 25 May, the Court of Appeal has said that the test is not whether violence has been used. Parking in violation of a clearly worded sign is using “force” for these purposes. A land-owner does not need to physically resist or commence legal proceedings to demonstrate an objection.

Recommendations

Where open land is exposed to trespass or unauthorised parking clear signs that would be visible to anyone entering the land without permission should be erected in a prominent position. If third parties acquire rights over a site, the potential for development can be frustrated. Warning signs should also prevent regular public access giving rise to registration as a Town or Village Green, which can also sterilise a development site. Security patrols and secure fencing can help prevent day to day practical problems but at least the small step of erecting a sign can give a lot of the legal protection required.