Prescriptive Easements: Can Signs Prevent Acquisition of Rights?
An easement is a right that is exercised over one piece of land for the benefit of another. An easement can be created expressly (e.g., by deed), arise by implication (e.g., by necessity), or by prescription (i.e., long user).
The rationale behind the creation of a prescriptive easement is that, where a party exercises a right for a long period of time (20 years +) without interference from the landowner, that right should be capable of being formalised.
One of the key components in establishing a prescriptive easement is that the use of the right must have been “as of right” – that is, without force, without secrecy and without permission of the landowner.
Case law has determined that the meaning of the phrase “without force” is wider than it may at first seem. It does not mean that the landowner must take physical steps or issue legal proceedings to prevent the trespass. Instead, an easement will be exercised with force where the use of that land is contentious, or only allowed under protest.
For example, the installation of visible signage by a landowner which makes it clear that land is private and not to be used by others has previously been considered sufficient to rebut a claim that the easement had been exercised “without force”.
However, a recent case heard in the First Tier Tribunal (FTT) (an independent body which handles disputes over property and land) appeared to raise doubt over the efficacy of signage in preventing the acquisition of a prescriptive easement.
The case involved a disputed right of way across a courtyard and up a flight of stairs at a property in central Nottingham. The freehold owners of the property, over which the right of way was being exercised, objected to an application made by the owners of the neighbouring property to register a prescriptive easement at HM Land Registry. The objection was based on a sign that had been installed which stated as follows:
“THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY NO PUBLIC RIGHT OF WAY”
HM Land Registry referred the matter to the FTT for determination. The FTT Judge determined that the applicants had established a prescriptive easement across the courtyard and stairs and that the sign installed by the respondents was “insufficient to prevent the acquisition of a private right of way”.
The respondents appealed the determination on the following grounds:
- Was the Judge wrong in law in her construction of the wording of the sign?
- Was the Judge wrong to constitute the words “no public right of way” as not affecting the acquisition of a private right of way?
The appeal was heard in the Upper Tribunal (Lands Chamber) (Nicholson & Anor v Hale & Anor [2024] UKUT 153 (LC) (14 June 2024)).
The Upper Tribunal reversed the decision of the FTT and held that “the sign was effective to prevent the use from being as of right….”.
While this determination has reaffirmed the importance of clear signage in preventing the acquisition of a prescriptive easement, landowners must be careful to ensure that any signs erected use unambiguous language, and clearly set out the specific action to which the landowner objects. Further, landowners would be well advised not to rely solely upon the installation of signage, but to monitor the situation and ensure that further steps are taken when unauthorised access is detected.
In cases such as these, it is best to act sooner rather than later, to prevent the acquisition of permanent rights over your land.
If you need expert advice on protecting your property from issues like this, our team is here to help. Find out more about how we can help you with property litigation, or contact us to speak with an expert today.
