Parking a car on private land might seem an innocuous infringement of the landowner's rights, temporary in nature and not necessarily going to give rise to a claim by the vehicle owner that they can do so on a permanent basis. However, there are some instances where this might happen. It is important therefore, for businesses and landowners to be aware of the risks involved when people park on their land.
The typical scenario might be an owner of business premises, with a shop front and designated car park for customers to use. The presumption is often that the users of the car park do so with the permission of the business or landowner.
But, what happens if the users of the car park are not doing so to attend the shop? What happens if they use the car park because it's free and, the shop they actually want to go to is down the road, but that shop doesn't have parking or it charges? In these situations, it could not be said that the person is using the car park with the owner's permission, since, if the owner knew, he or she would of course refuse.
Over time, a person using the car park 1) without force 2) without any secrecy and 3) without permission, might acquire a permanent right to do so.
Examples where the courts have granted such rights because of long use are, a case involving cottage owners acquiring a right to park on a beach beside a lake, a situation where parking had taken place over a workshop yard for many years, the owner of the yard changed hands and the new owner sought to restrain the parking. In that case, the court said a right existed to park one vehicle on the yard.
A right to car parking attaches to the land benefitting from the parking, not the person physically parking the vehicle. So, the right to park would continue to negatively impact the landowner and benefit the '1, 2, 3' user's land, long into the future and even after the land is sold.
What can be done to prevent these rights from coming into existence in the first place?
It can be difficult for business owners to know at all times just who is regularly parking in their car park and for what purposes. Often signs are put up warning users that they don't have permission unless for accessing the shop. However, this sort of a sign can have unintended consequences for the landowner.
Putting up signs in the area and in good view of users of the car park, stating that anybody parking their car does so with the licence or permission of the landowner and no rights over the land may be acquired, can assist. This is because, if the users of the car park do so with the permission of the landowner, then, the '1, 2, 3' test above may not be met, and the right to park by long use would not arise. Retaining copies of photographs of the signs can again assist, for use in any future dispute.
For landowners whose land is being used to park on, it is important to review your existing warning signs to ensure you are not inadvertently creating future problems and to ensure that those signs are visible to all users. For those landowners without any signage in place, now would seem as good a time as any to put some up.
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