The right way to prevent rights of way

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Summary

The recent Upper Tribunal judgement of Mr Justice Edwin Johnson provides some helpful clarification of the requirements for signs intended to prevent the acquisition of a right of way by prescription.

 

The facts

The case concerned the owners of two properties, number 4 Derby Terrace (Number 4) and number 6 Derby Terrace (Number 6). The front doors of Number 4 and Number 6 are located on a raised walkway. While the main access to the walkway is via a staircase from the public highway, Number 6 could also be accessed across a forecourt and stairway owned by Number 4.

New owners acquired Number 4 in 2020 and began works to enclose the forecourt and remove the staircase. The owners of Number 6 claimed a prescriptive right of way on the basis that they had been using the staircase as a shortcut to gain access to the walkway since 1996.

The case hinged on whether a sign (20cm by 6cm) placed some way up the staircase that said: "THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY, NO PUBLIC RIGHT OF WAY" was sufficient to prevent Number 6's claim to a prescriptive right of way.

At first instance, the First Tier Tribunal (FTT) found that the sign did not prevent Number 6 from acquiring rights. Number 4 then appealed to the Upper Tribunal (UT).

 

The Law

To acquire a private right of way by prescription, it is necessary to establish (amongst other things) that you have used the route claimed for the last 20 years (something that Number 6 could readily establish on the evidence).

However, established "long use" is only one part of the puzzle. It is also necessary to demonstrate that the use has been as of right, for the entire period of 20 years. "As of right" typically requires satisfaction of the test (using the well-known latin phrase): nec vi, nec clam, nec precario (or, without force, without secrecy, without permission). The relevant question in this case was whether the existence of the sign resulted in the user failing the 'without force' limb of the test.

"Without force" needn’t mean "without physical force". It also includes taking action against the will of the owner of the land. It follows that an appropriate sign, which demonstrates to a reasonable user of the land that any use would be contentious, could be enough to demonstrate force and prevent the acquisition of prescriptive right of way. Whether any given sign satisfies this requirement is an objective test, and fact-specific.

 

The Decision

The appeal addressed two main issues. First, whether the sign was sufficiently obvious and legible to convey to its message to the reasonable user. Second, whether the wording of the sign was sufficient to prevent use "without force".

On the first issue, both the FTT and UT found that the sign, whilst small, was sufficiently visible to users of the staircase so as to convey its message.

As to the second issue, the FTT focussed in on the prohibition in the sign of "NO PUBLIC RIGHT OF WAY". The FTT felt that this wording did not prevent the establishment of a private right of way, as the two rights were legally distinct concepts.

The UT disagreed with this finding. The judge did not consider that the FTT had given enough weight to the preceding words "THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY" and what that would convey to a reasonable user of the land. He felt that this wording alone would have been sufficient to displace the "without force" requirement of prescriptive user.

As to the relevance of the second part of the sign, the judge felt that the FTT was wrong to focus on the legal distinction between public and private rights of way. Notices of this kind should be read in a common-sense way, not a legalistic one. A reasonable user should not be treated as making legal distinctions of the kind relied upon by the FTT. The reasonable user should be taken to have read the whole sign. No ordinary user of the staircase would have inferred the technicality over public vs private rights of way. Instead, they would have interpreted the sign as clearly prohibiting their use of the forecourt and staircase, as it was stated to be "private property".

 

What does this mean?

Decisions of this kind are always fact-specific but this case helpfully demonstrates:

• the need for freeholders wishing to avoid the acquisition of prescriptive rights of way to ensure that appropriate signage is in place across their land;
• the need for signs to be prominent and clearly legible to any reasonable user of the land as a potential right of way; and
• while signs should not be construed in too legalistic a way, the wording used should clearly prohibit use of the land through phrases such as "Private Property", "No Right of Way", or "Access Prohibited" or a combination thereof. Phrases such as "Trespassing is dangerous", are unlikely to be sufficient, and so should be avoided.

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