Rights over land: Defences and duties

Landowners have always been fearful of third parties obtaining rights of way over their land and the duty of care owed to visitors and trespassers. A number of recent cases provide helpful guidance.

‘Defending what is theirs’ 

If a third party can show they have used a track, road or footpath for an uninterrupted period of at least 20 years and have used it without force, without secrecy and without permission, they will be able to claim a right of way by prescription.

What can a landowner do to stop this happening? The law in this area has been developing over the last 15 years and the current position can be summed up by the comments made by an appeal court judge in Winterburn v Bennett [2016]: “I do not see why those who chose to ignore signs should thereby be entitled to obtain legal rights over the land”.

The law now seems to favour owners and occupiers against those claiming legal rights but what steps should those owners and occupiers take to protect their position?

Winterburn v Bennett endorsed the view of the Court of Appeal in 2012 in Taylor v Betterment Properties (Weymouth) Limited that clearly visible signs are effective to protect a landowner’s rights. However, should the signs be permissive, for example, ‘The landowner gives permission to the public to use this path’ or defensive, ‘private land – keep out’?

When the House of Lords considered this point in 2003 in R (on the application of Beresford) v Sunderland City Council, they concluded that a permissive sign in the wording of the first example would be sufficient to prevent a right of way by prescription arising, but a defensive sign would require some further action to defeat a claim for a right of way by prescription, if it was being repeatedly ignored.

The tables have turned on this. Winterburn v Bennett concerned a car park which adjoined and was owned by a private members club. The car park was next to a fish and chip shop. The customers and suppliers of the fish and chip shop had driven on and parked on the car park for more than 20 years despite the fact that throughout that period there were clearly visible signs within the car park stating that it was private and for use of club patrons only.

The use of the ‘keep out’ sign was held by the Court of Appeal to be a clear assertion that the car park was private property for use only by the club’s patrons and sufficient to defeat any claims for rights over the land. Likewise in Taylor v Betterment Properties [2012], the owner of 50 acres of grazing land had erected signs stating that the land was private and the public were to keep out. The case concerned an application for the land to be registered as a town or village green. The landowner was successful in defeating the application, in reliance upon the signs that he had erected.

The cases have emphasised the need for the signs to be clearly visible. They should be replaced if vandalised and they should also be clearly visible from the entry points. If there is only one gateway, it will be sufficient to have one sign. However, if the trespass is a result of numerous points of entry, there needs to be more than one sign. Lord Justice Patten in Taylor v Betterment Properties stated “If the landowner erects suitably worded signs and they are seen by would-be peaceable users of the land, then it follows that their use will be contentious and not as of right”. That would be enough to defeat a claim for a right of way by prescription.

The final point to consider is whether signs, by themselves, are sufficient or should a landowner, knowing that a trespass is occurring on a regular basis, take more positive action to object to such trespass? In the case of Smith v Brudenell-Bruce in 2001, the High Court went so far as to say that a landowner should back up his objection either by physical obstruction or by legal action, “a user is contentious when the servient owner is doing everything, consistent with his means and proportionate to the user, to contest and to endeavour and to interrupt the user.”

Thankfully, the court in Winterburn v Bennett some 15 years later took a more common sense approach. It recognised that not every landowner seeks confrontation and would be concerned or frightened of it. It also recognised that many landowners do not have the means to bring proceedings. “There is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs.”

That would appear to suggest that landowners need not write letters or issue proceedings to protect their property. The note of caution is that the landowners response must be commensurate with the scale of the problem that is faced and it is necessary to build up a body of evidence which can be relied on when the third party brings a claim. A record of the dates when signs are erected or replaced, their locations and details of any challenges that are made to the third parties would be essential.

“Caring for those who are there..”

Where landowners invite third parties onto their property, commonly to attend shows or competitions hosted by them, the extent of the duty of the landowner to the visitor is a common question. In Lear v Hickstead Limited [2016] Mr Lear had parked his horsebox where he had been told to do so by the car parking contractors, left the ramp down and to pass the time before he competed, gone to watch others. Unbeknown to him, in the time that he was away, someone had manually raised the ramp, without using the hydraulics. When he came to reopen it, it sprang open suddenly, crushing him to the ground.

Mr Lear alleged that the organisers had failed to properly plan the parking, assess the risks posed by parking such large numbers of competitors and to maintain a safe system of managing the parking where there was overcrowding.

A landowner has a “duty to take such care as in all the circumstances of the case is reasonable to see the visitor will be reasonably safe in using the premises for the purposes of which he is invited or permitted by the occupier to be there.”

The court held that it was reasonably foreseeable that a third party might raise or lower a horsebox ramp and that might cause personal injury.

The fact that Mr Lear’s injuries were on a different scale did not matter. It is enough that it was reasonably foreseeable that the act of raising a ramp gives rise to personal injury. However, although a duty of care existed, had it been breached? In this instance it had not. The parking contractor had operated a safe system when parking large numbers of lorries and it had not been necessary for the third party to raise the ramp. The case serves as a reminder to all landowners hosting events whether big or small to consider all of the possible risks involved not only in relation to the competition itself, but in relation to all ancillary activities when third parties enter onto the property.

For more information please contact Vivienne Williams, Partner in the Agriculture team on vivienne.williams@michelmores.com