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Archive for February, 2015

You can’t park there!

More than 20 years continuous use by a landowner of another’s land conducted without consent, not in secret and not by force can lead to the use (the ‘dominant owner’) acquiring an easement over the other’s land (the ’servient owner’).  Commonly, this relates to a right of way or a right to park.  But what happens if it is not the dominant owner but its customers who exercise the right and the servicent owner has erected notices plainly objecting to the use?

His Honour Judge Charles Purle considered the issues in Bennett v Winterburn [2015] UKUT 59 (TCC) on appeal from the First-tier Tribunal.  It had held a fish and chip shop owners had acquired easements over the neighbouring Conservative Club’s car park through their customers exercising access over and parking upon the car park for a continuous period of over 20 years despite a plainly visible notice stating parking was for Club patrons only.

Judge Purle held the fish and chip owners were “entitled to maintain the rights of pedestrian access which they have established”.  However, turning to the parking, he allowed the Club’s appeal.  The judge at first instance had held notices alone were not sufficient but Judge Purle, whilst recognising that every case must turn on its own facts, held in his judgement, “the judge erred in concluding that more needed to be done in this case than maintain the notices visibly in place”.

Did it matter that it was not the fish and chip shop owners that had parked on the Club land?  They could not be sued for trespass and their customers were not their agents.  Judge Purle held such requirements were not necessary “and that all that is needed is acommodation of the dominant tenant”.

If you wish to hear more about easements, why not contact Hatherleigh Training?