Lawyer recommends land owners to protect their property

Following a recent Court of Appeal ruling, a local lawyer has recommended to land owners, to put up and maintain visible signage, and to take positive action to assert their rights and protect their property.

“KEEP OUT!” signs are a vital tool for land owners when it comes to preventing unauthorised use of open land, such as parking, dog walking and other general forms of trespass including some more objectionable activities after dark.  This simple tool has now proved to be vital to avoid those trespassers from gaining access to land or seeking to acquire formal legal rights over that land.  In a recent Court of Appeal case between private individuals, the courts have set out guidance to landowners to make their prohibition signage clearly visible.

The background of the particular case in question was that for many years customers and suppliers of a fish and chip shop in the market town of Keighley, West Yorkshire had without permission used part of a nearby car park of the Keighley Conservative Club Association to park whilst either making deliveries or to collect their fish supper. 

The unauthorised parking was very much a known secret, and the steward of the club had on several occasions (12-15 times in a seven year period) complained to the owners of the shop and drew attention to the fact they had no right to use the club’s land for any purpose, not least for their visitors’ unauthorised parking, however temporary that may be.

However, and crucial to the Court’s decision, was that at all times, throughout the relevant period the club had erected and displayed signed which stated: ““Private car park. For the use of Club patrons only. By order of the Committee”.

In 2010 the Conservative Club sold its building to the current freehold owners who some two years later, leased the building and the car park to a tenant who subsequently closed off access and prevented any further unauthorised parking.

With a noticeable effect on business, the chip shop owners brought an action against the new owners of the club, claiming that they had, over the years, acquired a legal right for their customers and suppliers to park on the former club car park. 

To prove such a claim in law, there must have been 20 years continuous use, “as of right” which means without any consent, without force and the right must be exercised openly. 

The chip shop owners felt that they had met this criteria but in a landmark ruling, the Court of Appeal disagreed.  The Court ruled that use of the land was in spite of a clear objection, which in the present case was the physical sign coupled with the vocal objections of the steward.  The court ruled that there had been “force”.  In providing some positive guidance to land owners, the court went on further to say that a land-owner does not need to physically oppose the trespass, nor commence a legal claim to demonstrate its objection.   As a result the chip owners’ claim failed.

Ian Bowker, Solicitor at Terry Jones commented: “Working on a daily basis with developer clients this is risk of which we are aware. This case provides some good news to land owners, as well as clear guidelines as to how to protect one’s land. Where any open land is at risk of unauthorised use, which is a trespass, then clear and signs that would be visible to anyone entering the land without permission should be erected and those signs maintained in a prominent position. You should ensure that no obstruction is allowed to be placed before the sign. If third parties acquire rights over a site, the potential for development can be frustrated to the potential loss of our clients.

I would further recommend that clear warning signs should be used to prevent regular public access on open land which could give rise to a claim for registration as a Town or Village Green - a method which is increasingly used to sterilise a potential development site. Other practical steps that can be taken including CCTV, security patrols and fencing, but these can be costly and are often impractical for large sites or for use over long periods. It pays therefore to invest in the cost effective and very simple solution of a “Keep Out” sign.”

Ian Bowker is a Commercial Property and Development Solicitor at Terry Jones Solicitors in Shrewsbury (Tel: 01952 297979 or Email: ianb@terry-jones.co.uk)

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