That peaceful pathway that you have used as a shortcut every day on your walk home from work might seem convenient and easy to navigate, but it may just turn into a maze of legalities. In a decision earlier this year in Nicholson and Another v Hale and Another, the Upper Tribunal considered whether a small sign put up by the landowner could prevent a neighbour’s claim that they had acquired a right of way.

Easements

A right of way over someone else’s land is sometimes referred to as an “easement”, and this private right can be acquired through use of the land for at least 20 years (known as a right of way acquired by prescription). However, this doesn’t mean that just anyone can obtain a right of way by sticking around long enough. In order for a period of use to establish such an easement, the use must have been as of right, not have been by force, in secret or otherwise with the permission of the landowner.

The Facts

The case of Nicholson v Hale concerned two properties, situated on the same terrace: 4 Derby Terrace (“Number 4”) and 6 Derby Terrace (“Number 6”).  The owners of Number 4 were the Appellants, resisting the claim to a right of way, and the owners of Number 6 were the Respondents seeking to establish the existence of a right of way.

At the front of, and part of Number 4, there had been a forecourt with a staircase which provided a direct route from the pavement to a walkway. The forecourt could also be used as a shortcut to access Number 6. Attached to a nearby wall to the staircase, was a small sign (not much bigger than one of the single bricks in the wall and which had been there since at least July 2000), which read:

“THIS STAIRCASE AND FORECOURT
IS PRIVATE PROPERTY
NO PUBLIC RIGHT OF WAY”

In 2020, the owner of Number 4 removed the staircase and created an enclosed front garden with the space in the forecourt, thereby removing the shortcut. In 2021, the owner of Number 6 attempted to register a right of way over the forecourt area at the Land Registry, and Number 4 objected to this application.

The First Instance Decision and Questions on Appeal

The case was initially referred to the First-tier Tribunal (“FTT”) who found that the sign had been insufficient to prevent Number 6 acquiring a prescriptive right of way over the 20 years that its occupiers had used the forecourt. The Appellants appealed against this decision and the case was heard at the Upper Tier Tribunal. The Respondents challenged the finding by the FTT that the sign could be read by anyone going up the staircase and argued that it was insufficiently legible to be seen or read.

The Upper Tribunal Decision

Taking the cross-appeal first, the Upper Tribunal held that the question of visibility was a question of fact, and that they should not interfere with such findings without good reason. In any event, the Judge was satisfied that he would have come to the same conclusion as the FTT Judge. Although the sign was small, and at some height from the ground of the pavement, it was sufficient to be seen by someone who had actually ascended the stairs.

This then left the question of whether the FTT had erred in their legal decision on whether the wording of the sign itself was sufficient to have prevented Number 6 acquiring a right of way. The Judge explained that the burden is on the user of the right of way to show that their use was as of right and not by force. This went further than physical force and meant showing that the use was not contentious or allowed only under protest. The Judge cited Winterburn v Benett as authority that “clearly visible signs” could be enough to make the use of the land contentious, should the wording of the sign be sufficient.

Turning to the wording itself, the FTT Judge had considered that this issue was objective and fact specific. The question to answer was therefore what the sign would have conveyed to a reasonable user of the staircase. In answering this, the context of the land also needed to be considered.

It was decided by the FTT Judge that a reasonable user would have read the words “no public right of way” and would have understood this to mean that the sign was preventing the use of a public right of way, but not preventing the acquisition of a private right of way over the land, such as an easement.

The appeal Judge concurred that the test is what the sign would mean to a reasonable user of the land but stated that this required a common-sense reading of the sign, not a legalistic one. A reasonable user would not, the Judge said, make the legal distinction that though no public right existed, that this did not prevent the acquisition of a private right over the land. Additionally, the Judge emphasised that the context of the sign was in relation to a very small piece of land, and not one which was intersected by other public footpaths. An ordinary user of the staircase would have therefore understood the words “private property” to convey that the staircase was not to be used other than by the landowners and that the words “no public right of way” simple reinforced this message.

In light of the above, the appeal Judge considered that the wording of the sign was sufficient to prevent Number 6 from acquiring a right of way over the forecourt and ordered that the application to register this right to the Land Registry be cancelled.

So, what are the key takeaways from this case?

This case establishes that a clear and visible sign with the words “private property” could be enough to prevent the acquisition of a right of way, depending on the land in context. For larger areas of land, or land with a more complex topography and interplays of public footpaths, landowners should not be tempted to get tied up in legal language, and land users will not easily be able to acquire easements by employing detailed legal arguments distinguishing between private and public rights. Rather, they should both consider how an ordinary, reasonable user would interpret the sign.

If you would like to discuss any of the matters raised in this article please contact Charlotte Lane.