The Upper Tribunal (Lands Chamber) has recently delivered a significant Court judgment in Nicholson v Hale, surrounding crucial aspects of prescriptive rights of way and the effectiveness of notices in preventing such rights from occurring.
Nicholson v Hale [2024] UKUT 153 (LC)
Facts
- The dispute concerned houses at 4 and 6 Derby Terrace.
- The appellants (owners of No. 4) had removed a staircase used as a shortcut by the respondents (owners of No. 6).
- A small sign (20cm x 6cm) at the top of the staircase read: “This staircase and forecourt is private property. No public right of way.”
The First-Tier Tribunal (FTT) ruling found that the respondents had obtained a private right of way by prescription and ruled that the sign’s wording was not sufficient to prevent the acquisition of this right. That decision was then appealed to the Upper Tribunal.
Upper Tribunal decision
- Visibility of the Sign:
- Supported the FTT’s decision that the sign would have been visible to users.
- Highlighted that the question was whether a reasonable user would have seen the sign, not whether specific individuals remembered seeing it.
2. Effectiveness of the Sign’s wording:
- Reversed the FTT’s decision on this matter.
- Concluded that the wording “private property” was adequate to indicate that the land was not to be used without authorisation.
- Underlined an objective, fact-specific test for determining a sign’s effectiveness.
Fundamental principles
- The burden is on the user to show their use was not used by force or permission and only under protest.
- The test is what the sign would convey to a reasonable user of the land.
- Context is essential in interpreting the nature and content of such notices.
What are the implications?
This judgement presents clear guidance on the success of notices in preventing prescriptive rights from being created. It implies that a simple statement of “private property” may be adequate to challenge unauthorised use, in other words stopping the acquirement of prescriptive rights.
Comment
Landowners who are seeking to prevent prescriptive rights should ensure clear, visible signage expressing the private nature of their property. While more detailed wording may be beneficial, this case suggests that even concise notices can be successful if they clearly convey the private nature of the land.
How can we help?
Simon Waterfield is a Partner in our expert Dispute Resolution team, specialising in property disputes, rights of way claims, landlord and tenant disputes and commercial disputes.
For more information on the subjects discussed in this article, get in touch with Simon or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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