Easements: do you have sufficient signage?
An easement is a right to use land in a particular way or for a particular purpose, such as a right of way, without owning the land.
A landowner can display a sign to prohibit use of their land, but the placement and wording of any signage is significant.
In a recent case between two property owners in the same terrace of houses (Nicholson v Hale [2024] UKUT 153), the Upper Tribunal held that a sign erected by a landowner was sufficient to prevent a neighbour from acquiring a right of way.
Background
The Appellants owned 4 Derby Terrace (“No 4”), and the Respondents owned 6 Derby Terrace (“No 6”), two doors down from No 4. Both properties shared the same terrace, and each property historically had a small open forecourt with a raised front door, accessed by a raised walkway with steps.
The Respondents had owned and occupied No 6 since 1996, while the Appellants had purchased No 4 in 2020. Prior to the Appellants purchasing No 4, the walkway and its forecourt (“the Forecourt”) were connected by an open staircase (“the Staircase”).
While carrying out works to their Forecourt (which included the erection of walls to enclose the Forecourt), the Appellants removed the Staircase on No 4.
The Respondents applied to the Land Registry claiming they had obtained a right of way over the Staircase and Forecourt by prescription (i.e. long user), claiming they had used the Staircase and Forecourt as a walkway to access No 6 since their acquisition in 1996.
The Applicants objected to the application. One of the Applicants’ main arguments was that a sign had been affixed to the wall at the top of the Staircase (“the Sign”) which prevented the acquisition of a private right of way. The Sign read:
“THE STAIRCASE AND FORECOURT
IS PRIVATE PROPERTY.
NO PUBLIC RIGHT OF WAY”.
Decision
The matter was referred to the First-Tier Tribunal (“FTT”) in the first instance.
The FTT ruled in favour of the Respondents and Judge McAllister held the Sign prohibited use of the Staircase as a public right of way, being an extension of the footpath. The Sign referred to public rights, and did not therefore prevent the acquisition of a private right of way through prescription.
The Applicants were granted permission to appeal and the matter was heard before the Upper Tribunal.
The Appeal
The appeal was heard in the Upper Tribunal before the Chamber President, Mr Justice Edwin Johnson.
Mr Johnson agreed with the FTT’s decision insofar as the Sign was legible for those using the Staircase. This was an important point to consider as prescriptive rights of way can only be obtained nec vi (without force), nec clam (without secrecy) and nec precario (without permission). Using the Staircase and Forecourt where a sign expressly prohibited use could be deemed to be use with force (Winterburn v Bennett [2016] EWCA Civ 482, [2017] 1 WLR 646 at [22] and [23]).
While Mr Johnson agreed with the FTT’s decision that the Sign was legible, he did not agree with Ms McAllister’s interpretation that the sign only restricted the acquisition of a public right of way, not private rights. The Sign stated the Staircase and Forecourt were private property which conveys the message that the land is not to be used.
Mr Johnson stated the “nature and content of the relevant notice [i.e. the Sign] must be examined in context”. The fact that the Sign prohibited public use would, to the reasonable user of the Staircase and Forecourt, make it known that it cannot be used for private use. The qualification that the Staircase and Forecourt cannot be used as a “public right of way” did not “qualify or undermine” the Staircase and Forecourt being private land. The whole wording of the Sign should be considered.
Mr Johnson applied a common-sense approach and considered what the reasonable user would believe when using the Staircase and Forecourt and reading the Sign.
Mr Johnson also made the following points:
- Previous case law has held the erection of a sign could render the use by another as ‘contentious’. If an appropriate sign was erected, the owner of the Staircase and Forecourt “was not expected to do more”.
- When considering whether the Sign itself was “appropriate”, Mr Johnson held the Sign was sufficiently visible and legible (agreeing with the FTT’s decision) and the message conveyed to the reasonable user was that they had no right to use the land.
- The reasonable user’s understanding of the Sign is relevant in determining whether the Sign has appropriate wording, not whether the owner of the land in question has “done enough in the particular circumstances of the case”.
Mr Johnson overturned the FTT’s decision.
Impact
It is important for landowners to consider the potential risk of someone acquiring a prescriptive right of way. If landowners have erected a sign to prevent rights from being acquired, it is important to consider:
- The wording of the sign
- Where it is placed
- Whether the sign is legible and easily visible
- Whether multiple signs are needed (given the topography of the land); and
- What the reasonable user may understand on reading the sign.
Similarly, those seeking to acquire prescriptive rights should carefully consider the topography of the land in question and consider if their use of it is with “force”.
The Hamlins Real Estate Disputes team has expertise in both commercial and residential matters. We seek to obtain the best outcome possible for every client, no matter how big or small the issue may be. If you would like a conversation to find out how we might help you, please get in touch.