Check for vital signs!

In this article we look at the Upper Tribunal decision in Nicholson v Hale [2024] that considered whether a sign put up by a landowner was sufficient to prevent a neighbour’s claim to have acquired a right of way by long use.

WolfBite - the key takeaways:

• A right of way over someone else’s land can be acquired if it has been enjoyed without force, secrecy or permission for at least 20 years.

• The owner of the land may be able to prevent a right of way being acquired through long use by erecting one or more signs stating that the use is not permitted.

• What is required will depend on the facts of each case, but the sign(s) must be suitably placed, visible and legible to users of the land.

• The wording of the sign must be sufficient to convey to the reasonable user that unauthorised use of the land will be contentious.

• If the sign is ignored, the use of the land will be treated as being “by force” and the claim to a right of way will fail.

• In this case, the Upper Tribunal, overturning an earlier decision, found that the sign could be seen and read by reasonable users of the land who, reading the sign in a non-legalistic way, would have understood the wording to mean that they had no right to use the land, on any basis.

This case highlights the need to ensure that, when seeking to prevent rights of way from arising, clear words are used in any signs that are displayed.

As we explain below, the judge in the Upper Tribunal disagreed with the lower tribunal judge’s interpretation of the wording of the particular sign in this case, specifically whether it prevented both public and private rights of way from arising.

It will be interesting to see whether a further appeal to a higher court is made about this, but perhaps the expense of two rounds of legal proceedings could have been avoided if the wording had been even very slightly different, perhaps had the sign simply omitted the word “public”.

What is an easement? What is a right of way?

A right of way is a type of easement. An easement is a right over someone else’s land.

Examples of other easements include a right to park in a designated area, a right of drainage and the right to run pipes, wires and cables on or under a neighbour’s land.

The land that benefits from the right is called the “dominant” or “benefited” land. The land that is subject to the right (that is, over which the right runs) is called the “servient” or “burdened” land.

For an easement to exist, the right must be of some practical importance to the land itself (rather than merely being of personal benefit to the owner); the benefited and burdened land must be owned by different people; and the right must be capable of having been granted by a deed even if that is not how it arose (it must, for example, be clearly defined, not vague).

Easements can be created expressly in a deed (for example, in a transfer when part of a piece of land is sold off), by necessary implication, by statute or by will.

Easements can also be acquired by long use (prescription).

Acquiring rights of way by long-use

The common law has for centuries accepted that rights that have been exercised over someone else’s land without interference over long periods of time should eventually become legitimate and secure.

The law therefore prevents the disturbance of the use of land that has been enjoyed for a long time.

There are three main ways in which rights can be acquired by long use:

Common law prescription – if a right has been exercised for at least 20 years, there is an archaic, but rebuttable, presumption that the right commenced before 1189 (when Richard I came to the throne).

Doctrine of lost modern grant – if a right has been enjoyed for at least 20 years without any other lawful explanation, the law will adopt an irrebuttable legal fiction that there was an express deed of grant after 1189 but that the deed has been lost. The 20 years use can have accrued at any point; the use does not need to be continuing at the time an application is made to the Land Registry to register the claimed right.

Prescription Act 1832 – after 20 years use (or 40 years in certain circumstances), a right can arise under this Act as a defence to a claim that the right did not exist in 1189. The use must generally be the 20 years immediately before an application to the Land Registry is made to register the claimed right or other legal action started.

Often, more than one of these three methods is relied on by the person claiming the right.

Whichever route is chosen, long use is not sufficient on its own.

Crucially, the use must have been a continuous use “as of right”.

“As of right” means that the person claiming the right must show that they have used it as if they were entitled to it, meaning without force, without secrecy and without permission.

Essentially, the person making the claim needs to show not only that the right has been used for the 20-year period, but that the owner of the burdened land has acquiesced in the use (that is, it knew what was happening, had power to stop the acts, but it did nothing).

Using signs to prevent rights being acquired by long use

The requirement for the right to have been used “without force”, means more than just that physical violence must not have been used. The person claiming the right must show that the enjoyment was not contentious or only allowed under protest.

In one of the leading cases, the Court of Appeal decided that clear signs erected on the land stating that it was a private car park for the use of patrons only, was enough to show that the parking of cars on that land by the neighbouring fish and chip shop, their suppliers and customers was contentious. The law did not require the landowner to seek confrontation, or bring proceedings, to defend what was theirs.

The erection and maintenance of one or more appropriate signs is a peaceful and inexpensive way of making clear that property is private and not to be used by others.
The presence of a clear sign can therefore indicate a continuing objection to an unauthorised act.

Where that is the case, if the sign is ignored, the unauthorised use of the land will be treated as having been by force. The use will not then be “as of right”, and a claim to have acquired a right of way by long use will fail.

Nicholson v Hale

This case involved two houses in a terrace in Nottingham.

The owners of No.6 Derby Terrace applied to the Land Registry to register a right of way over a staircase and small area in front of No.4 Derby Terrace. They had bought No.6 in 1996 and said that they had used the right of way since then to obtain access to and from No.6. They claimed that they had acquired the right of way by long use.

The owners of No.4 objected. They said that there was a sign on a wall that had prevented the acquisition of a right of way by long use.

The sign in question read: “THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY NO PUBLIC RIGHT OF WAY”.

It was not clear when the sign had been put up, but a photograph showed that it had been in place since at least July 2000.

The First-tier Tribunal (FTT) accepted the owners of No.6’s claim to a private right of way by long use. It found that the right of way had been used for over 20 years from December 1996, and that the sign had not been sufficient to convey that the use was contentious.

Importantly, the FTT considered that the sign only said that there was “no public right of way”, which the judge did not believe prevented the acquisition of a private right of way in favour of No.6. The judge took the sign to mean that the staircase was not to be used by the public, as an extension of the public footpath.

The owners of No.4 appealed to the Upper Tribunal.

The Upper tribunal allowed the appeal and overturned the FTT’s decision.

The appeal judge found that the sign could be seen and read by any reasonable user using the staircase, which just left the question of what the sign itself said.

The question of whether a particular sign is effective to render use contentious is fact sensitive. Notices and signs have to be considered in context, and should be read in a common sense, not a legalistic, way. The key is what the sign would convey to a reasonable user standing in the position of the actual user. If the reasonable user would, or ought to, have known that the owner was objecting to and contesting the use of the land, the sign is effective to render it contentious.

The appeal judge considered that, in isolation, the words “private property” in the sign conveyed to the reasonable user that the land was private and not to be used by anyone other than the landowner or those authorised by them.

In this particular context - a small area of land providing a direct route from the pavement to the walkway outside the front doors to the terrace houses - the appeal judge believed the sign was sufficient to inform people that they were not entitled to use the land as a short cut.

As for the “no public right of way” wording, the appeal judge thought that, adopting a common sense and non-legalistic interpretation, the reasonable user would not draw a distinction between public and private rights. That was a legal distinction the judge did not believe the reasonable user would make.

When read as a whole, the appeal judge considered that the reasonable user would have understood the sign as meaning that they had no right to make use of the land, on any basis.

Accordingly, the Upper Tribunal found that the sign was sufficient to make it clear to the reasonable user that use of the land was contentious, on any basis.

The sign was therefore effective to prevent the use from being “as of right”.

As a consequence, the owners of No.6 were not entitled to claim to have acquired a right of way by long use, and the FTT judge had made an error of law in this respect.

The appeal was allowed, the FTT’s decision was set aside and the Upper Tribunal substituted its own decision that the use was not “as of right” so that the claim to the right of way failed.