If You Trespass For Twenty Years, You Are Allowed To Carry On? Not Always, It Turns Out.
Two subjects today, the first is in my opinion a victory for common sense, enshrined in a new Court decision about Prescriptive claims to land, sometimes called “Squatters’ Rights. [Though not!]. The second has been filling my Twitter feed all day.
The first link is here.
The case relates to land nearby a fish and chip shop. The chip shop owners did not own the land, but it was open unfenced and very handy for their customers to use to park offroad. Each customer’s car was likely parked only a few minutes, but, whilst ever the shop was open, new cars would be arriving all the time and the “car park” therefore very busy.
The land was owned by a members’ Club. The land was unfenced because the Club Members used it to park there. The Club was not happy about the chip shop customers, it had even put up a sign saying “Private Car Park, – For use of Club Patrons only. By Order of the Committee”
This situation had continued for over twenty years.
The Law of England says that rights in land – “Easements” – do not have to be bought for money, or documented in writing. If the person claiming the easement can show that they [including previous owners] have used – “enjoyed” – the easement for over twenty years, there is a legal fiction of the “lost modern Grant”, under which they can apply to the Land Registry to have their claim registered as an easement in their favour.
However, the Land Registry [or ultimately the Court, in the event of dispute] will tell you that it is also necessary to show that the easement has been enjoyed throughout that period under three conditions.
First – without permission. Because if I allow you to park on my land today, I can ask you not to do it any more tomorrow. I am retaining control.
And second, enjoyment without secrecy. Because, if you only park on my land whilst I am asleep, in order to ensure that I don’t know about it, then I am being given no opportunity to object.
And thirdly, enjoyment without force. As an extreme example, if you are ten foot tall and ugly looking, and given to carrying a weapon, and the last time I asked you not to park there you hit me a lot and hurt me, then it is not surprising if I stay away from you. The law does not think this behaviour gives you any rights in my land.
So in this case it seems that the situation had carried on this way for over twenty years. Without permission [indeed, there was a sign, saying in effect, you do not have permission to park here]. And without secrecy. [The cars were parked openly and obviously. Is there any other way for chipshop customers to park cars?].
And at the Court hearing it was common ground that there had been no “face-offs” or violence or threats of violence or force.
So, what you think. Who won the case? On the facts as I put them, you may think the Chip shop owners. But who should have won the case? I think the Club. It is their land, there was a sign. They could have come up with some fencing I suppose, and given their members keys to the new gates, but that costs money and why should they?
So as you will know if you clicked on the link and read the case, yes, hooray, it was the Club.
No easement of parking was registered, the Claim was denied.
But, if it had been going on for twenty years without permission secrecy or force it should have been registered?
No, The Court decided that there WAS force. Force does not mean only brute force, violence or conflict or threats. The Judge said “The phrase ‘without force’ carries rather more than its literal meaning. It is not enough for the person asserting the right to show that he has not used violence. He must show that his user was not contentious or allowed only under protest”
Clearly, the use was made under protest. The Protest was written on the wall – “Private Car Park, – For use of Club Patrons only. By Order of the Committee”. And as an aside, the Judge told us that if the sign had been removed, it would not even have been necessary for the Club to keep paying to replace it.
And whichever way that goes, for accurate Notarial acts and records, please do contact me or Louise whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)