The case of Nicholson & Anor v Hale & Anor (Nicholson), heard in the Upper Tribunal (Lands Chamber) regarding a contentious right of way in Nottingham, highlights the importance of using clear signage under property law.
By way of background, this case involved a disputed right of way across a courtyard and up a flight of stairs at a property known as 4 Derby Terrace (Number 4) in central Nottingham.
The Appellants, the Nicholsons, were the freehold owners of Number 4, the property over which the right of way in dispute ran. The Respondents, the Hales (who owned the neighbouring property, Number 6), applied to the Land Registry for registration of a right of way by prescription under the Prescription Act 1832, following 20 years continuous use as of right.
The application to the Land Registry was opposed by the Nicholsons, on the basis that there was a sign which read:
"THIS STAIRCASE AND FORECOURT
IS PRIVATE PROPERTY
NO PUBLIC RIGHT OF WAY"
The Land Registry referred the issue to the First-tier Tribunal (FTT) for determination. The matter was heard on 27 June 2023 and the FTT determined that the Hales had benefitted from using the pathway across the courtyard and stairs belonging to Number 4 for a period of 20 years and more, starting from 2 December 1996. Further, whilst the FTT Judge noted that the sign was visible to those using the stairs at Number 4, she concluded that the wording of the sign was "insufficient to prevent the acquisition of a private right of way".
With the permission of the Judge, the Nicholsons appealed the decision. Permission was granted to appeal on the following two grounds:
(1) did the Judge go wrong in law in her construction of the wording (of the sign)? The Nicholsons contended that the wording was good enough to prevent the acquisition of a right of way, and the lower tribunal wrong to say otherwise.
(2) was the Judge wrong to construe the words "NO PUBLIC RIGHT OF WAY" as not affecting the acquisition of a private (as opposed to public) right of way.
In the Upper Tribunal (UT), the Nicholsons were successful on the first of the two grounds of appeal. Relying on various authorities, the UT held that "the Sign was effective to the prevent the Use from being as of right, at least as from July 2000." As a consequence, the UT found that the FTT determination and Order must be set aside.
The UT re-stated that "where an easement is claimed on the basis of prescription, the relevant use which is relied upon must be user as of right. This means that the use must not have been by force, or in secret, or by permission".
As for the second ground, the UT found that whilst it may have some relevance in relation to the first ground, the second ground did not have merit as a "free-standing ground of appeal, at least on the basis it was advanced", and therefore concluded that it failed.
This case will be of particular interest and importance to any practitioners who deal with rights of way.
And by way of a reminder – check your signs!
