Perplexed by property law? Relax, Solicitor Beatrice Gallivan is here to answer your most pressing questions…
Q. Last year I purchased commercial premises which include a car park. On the opposite side of the road from the car park is a takeaway and a restaurant. I have recently noticed that the customers of the takeaway and restaurant are parking their cars in my car park in the evenings. When I spoke to the owners of these businesses about the problem they said that their customers had been parking in the car park for 15 years on a daily basis and they were not going to discourage them from continuing to do so as it could have an impact on their business. I am worried that permanent rights over my land may be created if I do nothing. I would prefer not to have to spend money putting in place a new gate that would block access to these customers but still allow me and my staff to gain entrance. What should I do?
A. An easement or right of way can be claimed over land by prescription. One of the requirements is that the long use must have been 'as of right', which has three elements i.e. the use must have been without force, without secrecy and without permission. In order to establish an easement for parking by prescription, 20 years uninterrupted use involving all three elements will need to be shown.
It is clear in this case that you have not given permission and that the customers of the restaurant and takeaway are parking in the car park in an open manner. The 'without force' element is the element that is in doubt. The term 'without force' means that the person claiming the easement must show that its use is not contentious; it is not enough for the person to show that they did not use violence.
Practically speaking, the most effective way to prevent people acquiring a right over your land would be to take physical steps (such as implementing a gate) so that they do not have access as this would reduce the prospect of an argument regarding whether or not their use is 'without force'.
Having said that, this issue was recently addressed in the Court of Appeal case of Winterburn v Bennett,  EWCA Civ 482 and as a result of this case you should not need to take physical steps or legal steps to prevent the customers parking in your car park from acquiring a right to do so. The presence of signage at the entrance to the car park which is clearly visible and states that the car park is private property and for the use of your commercial premises only ought to be enough to show that its use is contentious. This should prevent other people acquiring any rights by prescription, even if they continue to use the car park regardless. This is a peaceful and inexpensive way of making it clear that your land is private and not to be used by others. If the signs are vandalised or removed, the erection of replacement signs from time to time in places where they are visible to those seeking to park on your land should be sufficient. It is crucial to remember that the signs must be sufficiently clear and visible to people who are attempting to use the land.