Erecting an appropriate sign can be sufficient for a landowner to prevent the acquisition of a legal right over their land and the sign must be read in a common-sense way.
The Upper Tribunal (Lands Chamber) has allowed an appeal from the First-tier Tribunal concerning signage in Nicholson and another v Hale and another [2024] UKUT 153 (LC); [2024] PLSCS 112.
The case concerned numbers 4 and 6 Derby Terrace, Grade II listed properties in Nottingham. Each property was three storeys high with an elevated ground floor, so the basement was on the same level as the road. Access to the properties at ground-floor level was by means of a raised walkway.
The appellants acquired no. 4 in May 2020 and refurbished it including the creation of an enclosed garden at basement level and removing a railed metal staircase which ran from basement level to the walkway.
A sign, 20cm by 6cm, on a wall at a level around the height of the top step of the metal staircase – when it was in place – stated:
THIS STAIRCASE AND FORECOURT
IS PRIVATE PROPERTY
NO PUBLIC RIGHT OF WAY
The respondents had operated their business from no. 5 Derby Terrace between 1991 and 1996 and from no. 6 since 1996. They sought an easement by prescription over the garden by foot to gain access to no. 6 on the basis that they and others had used the staircase to access no. 5 since 1991 and no. 6 since 1996.
The FTT found that the sign had been in place since at least July 2000, and the respondents had established a prescriptive right of way for at least 20 years from no later than 2 December 1996. The sign was small and high off the ground but it could be read by anyone going up the staircase. However, the reference to “no public right of way” was insufficient to prevent the acquisition of a private right of way.
Prescriptive user must be as of right, not by force, secretly or by permission. While the tribunal would not interfere with the judge’s finding as to the legibility of the sign, it disagreed with the effect of the wording. The garden was private property. The reasonable user – who must be taken to have read the whole wording – would have understood that they had no right to use the garden as a shortcut to the walkway. Consequently, the use was not as of right and the respondents could not rely on the doctrine of prescription.
Louise Clark is a property law consultant and mediator
