How to prevent a right of way being acquired

A case before the Upper Tribunal earlier this year, Nicholson v Hale [2024], gave us some useful guidance on the requirements for signs that are intended to prevent rights of way being acquired by long user or ‘prescription.’

The case concerned two properties in Derby Terrace in Nottingham. Party A owned 4 Darby Terrance (Number 4) and Party B owned 6 Darby Terrace (Number 6). The front doors of both properties were on a raised walkway with steps at the eastern end with access to the public highway. Number 6 could also be accessed across Number 4’s forecourt and staircase.

Party A purchased Number 4 in 2020 and then began work to demolish their staircase and enclose their forecourt to create a walled garden. The owners of Number 6 claimed that they had a prescriptive right of way over Number 4’s staircase and forecourt and said they had been using both since they purchased their property in 1996.

The case focused on a sign that was fixed at the top of Number 4’s staircase and whether it was sufficient to prevent a right of way being acquired through long use. The sign was 20cms x 6cms and said

THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY.

NO PUBLIC RIGHT OF WAY.

In order to acquire a right of way by long user the applicant needs to show use for at least the last 20 years. However, that is only part of the story, the applicant also has to show that the use has been ‘without force, without secrecy and without permission’ so that use has been ‘as of right’.

The Upper Tribunal looked at the sign in the context of whether use had been without force. As you might expect, nothing is ever straightforward and ‘without force’ does not in fact mean without actual physical force but can simply mean doing something that is contentious. It therefore follows that a sign could be enough to show force and prevent a right being acquired.

Was the sign sufficient? The Upper Tribunal found that the sign, albeit small, was sufficiently visible to users of the staircase so as to sufficiently convey the message and displace the ‘without force’ requirement.

Conclusion

This is a useful case showing us that if there is a sign on the land which says “private property” or similar words then it is unlikely that the prescriptive right of way can be acquired.

If you would like to discuss issues regarding rights of way or any other litigation matter please contact Johanne Spittle, Director – Litigation & Dispute Resolution at Ware & Kay on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email johanne.spittle@warekay.co.uk