Mohammed Sagier v Harbans Kaur
[2024] UKUT 217 (LC)
Adam Thomas Nicholson & Anor v Ian Reginald Hale & Anor
14 June 2024
[2024] UKUT 153 (LC)
Upper Tribunal
Neighbors argued about a path across someone's yard. A small sign said 'Private Property, No Public Right of Way'. The court decided the sign was enough to stop them from claiming the right to use the path because it clearly stated that the land was private and the public couldn't use it. The small size of the sign was not an issue.
Key Facts
- •Dispute over acquisition of a right of way by prescription over a private area of land ('Blue Land') adjacent to two properties (Number 4 and Number 6, Derby Terrace, Nottingham).
- •Respondents (owners of Number 6) claimed prescriptive right of way over the Blue Land, including a staircase, for access to their property.
- •Appellants (owners of Number 4) argued that a sign ('the Sign') on their property prevented the acquisition of the right of way.
- •The First-tier Tribunal (FTT) found for the Respondents, ruling the sign's wording insufficient to prevent acquisition of a private right of way.
- •Appellants appealed, arguing the sign's wording was sufficient; Respondents cross-appealed, arguing the sign was illegible.
Legal Principles
For a right of way to be acquired by prescription, the use must be 'as of right' – not by force, secretly, or with permission (nec vi, nec clam, nec precario).
R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335
The continuous presence of legible signs can render use contentious, preventing it from being 'as of right'.
Winterburn v Bennett [2016] EWCA Civ 482
The fundamental question is what a notice conveyed to the user; a reasonable user's understanding, not the owner's subjective intent, is key.
R (Oxfordshire & Buckinghamshire Mental Health NHS Foundation Trust and Oxford Radcliffe Hospitals NHS Trust) v Oxfordshire County Council [2010] EWHC 530 (Admin)
A landowner doesn't need to do more than erect appropriate signs to prevent acquisition of rights; confrontation isn't required.
Winterburn v Bennett [2016] EWCA Civ 482
Appeal courts should be slow to interfere with findings of fact by first-instance courts, unless obviously wrong or based on an error of law.
Edwards v Bairstow [1956] AC 14
Outcomes
Appeal allowed.
The sign, stating 'THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY NO PUBLIC RIGHT OF WAY', was sufficient to render the use contentious and not 'as of right', preventing the acquisition of a prescriptive right of way.
First-tier Tribunal's decision set aside and remade.
The FTT erred in law by misinterpreting the sign's wording. The Upper Tribunal concluded the sign effectively prevented the use from being 'as of right'.
Cross-appeal dismissed.
The Upper Tribunal upheld the FTT's finding that the sign was legible, finding no basis to overturn the factual finding.
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