On the Seventh Day of Christmas....the acquisition of a right of way by prescription.

Background

The case of Nicholson and another v Hale and another [2024] involves a dispute over the acquisition of a right of way by prescription. The appellants, owners of 4 Derby Terrace, Nottingham, objected to the respondents’ claim of a right of way over their property, arguing that a sign on their property prevented such a right from being acquired. The respondents, owners of 6 Derby Terrace, had owned and occupied the property since 1996. Until the appellants acquired Number 4 in 2020, there had been an open staircase leading from its forecourt to the walkway. The appellants demolished the staircase and enclosed the forecourt to create a walled garden.

Key Issues

1. Right of Way by Prescription: The respondents claimed they had acquired a right of way over the appellants’ property through long-term use.
2. Effectiveness of the Sign: The appellants argued that a sign stating “THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY NO PUBLIC RIGHT OF WAY” was sufficient to prevent the acquisition of the right of way.
3. Visibility and Legibility of the Sign: The respondents contested the visibility and legibility of the sign, arguing it was not effective in preventing the acquisition of the right of way, particularly due to its small size.

Decision

The Upper Tribunal (Lands Chamber) found that:

• The sign was visible and legible to anyone using the staircase.
• The wording of the sign, stating “no public right of way,” was not sufficient to prevent the acquisition of a private right of way, particularly without a legalistic analysis.
• However, the sign’s reference to private property, would have reasonably indicated that it should not be used.
• Overall, the wording of the sign had been sufficient to prevent a right of way being acquired by prescription.

Legal Implications

1. Signage and Prescriptive Rights: This case highlights the importance of clear and unambiguous signage in preventing the acquisition of prescriptive rights. Signs must explicitly state that no private right of way exists to be effective.
2. Objective Interpretation: The decision underscores that the interpretation of signs should be based on what a reasonable person would understand, not on the subjective intentions of the property owner.
3. Legal Precedents: The case references several key precedents, including Winterburn v Bennett and R (Barkas) v North Yorkshire County Council, reinforcing the principles around the acquisition of rights by prescription and the role of signage.

This decision provides valuable guidance for property owners and practitioners on how to effectively use signage to protect their property rights and prevent the acquisition of prescriptive easements. The key test is what a sign would convey to a reasonable user, without applying a legalistic analysis. This is highly fact-specific, and practitioners dealing with similar signage should carefully consider both the wording and the specific characteristics of the land in question.