People often assume that if they have used an access way over a third party’s land for many years then their property will benefit from a legal right of way under the law of prescription.

This is not always the case, as illustrated by the recent decision of the Upper Tribunal in Nicholson and anr v Hale and anr [2024]UKUT 153 (LC).

Note: This is the position as it relates to England; the decision may be persuasive in a Scottish court, but it will not settle the position in Scots law.

The case highlights that a sign indicating that land is private property (even a small, easy-to-miss one) can be sufficient to prevent a prescriptive right of way from being acquired.

To qualify as a prescriptive right, the use must have been exercised for the requisite period of 20 years “as of right”, i.e. openly and without secrecy, force or permission. It is well established that landowners can prevent rights from arising by erecting signage informing visitors that the land is privately owned and that they have no rights to access it.

In Nicholson, Nicholson sought to establish that a prescriptive right had been created in favour of the offices owned by a firm of solicitors, French & Co, at No 6 Derby Terrace. The alleged right of way was over an area of forecourt and a staircase belonging to the neighbouring property at No 4 Derby Terrace. The forecourt and staircase had been used openly for over 20 years by the owners and occupiers of No 6 to access the offices.

In 2020, the new owner of No 4 also acquired title to the forecourt area (which had until that point been unregistered). Over the course of a weekend and with no prior notice, the staircase was removed and the access was blocked.

The sign (located on the wall at the top of the staircase) was the main focus at both the initial hearing and the appeal. The sign itself was small– roughly the size of one of the bricks– and read as follows:

“This staircase and forecourt is private property. No public right of way”

The First Tier Tribunal considered the wording of the sign and decided that because it expressly ruled out the acquisition of a public right of way, this left open the potential acquisition of a private right. The Tribunal held that No 6 had indeed acquired a private right of way by prescription.

On appeal, the Upper Tribunal also focused on the wording of the sign (having first rejected an argument that the sign itself was so small that its wording was illegible). The Judge disagreed with the First Tier Tribunal’s findings and found that the words “private property” were sufficient to rule out the acquisition of a right of way, on the basis that:

“If land is identified as private property, the message which this identification seems to me to convey is that it is not open to persons other than the owner of the land and those authorised by the owner either to go on to the land or to make use of the land”.

Notwithstanding the reference to a public right of way, the reasonable user of the staircase would understand that they were not entitled to make use of the land on any basis.

Although the decision came down on the side of No 4 in finding that there was no prescriptive right, landowners should still take note. Signage should be maintained in a suitable location and should be sufficiently large and clearly worded to prevent rights of way from being acquired.  For a party hoping to establish a prescriptive right of way with evidence of long user, even a very small and inexpertly worded sign could be enough to defeat their claim.

Note: This is the position as it relates to England; the decision may be persuasive in a Scottish court, but it will not settle the position in Scots law.

If you would like to talk to us about how we can assist you with your real estate needs, please contact Kirsty Morley or your usual Burness Paull contact.

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