Prescriptive rights of way – "private property" sign – "as of right"
The facts
The Appellants were the freehold owners of 4 Derby Terrace ("Number 4") and the Respondents were the freehold owners of 6 Derby Terrace ("Number 6"), next door but one. The properties were on the same terrace which was set back from the road and each property was fronted by a small, open forecourt. Each had a front door on the floor above, accessed by a raised walkway with steps at its eastern end.
The Appellants had acquired Number 4 in 2020; the Respondents had owned and occupied Number 6 since 1996. Until the Appellants acquired Number 4, there had been an open staircase leading from its forecourt to the walkway. The Appellants demolished the staircase and enclosed the forecourt to create a walled garden. The Respondents asserted that they had acquired a private right of way over the staircase by prescription.
The FTT judge found that forecourt and the staircase had been used, for the benefit of the owners and occupiers of Number 6, since 1996 as a shortcut. She rejected the Appellants' argument that the sign with dimensions 20cm x 6cm affixed to the wall at the top of the staircase was sufficient to prevent the acquisition of a private right of way. The sign read:
"This staircase and forecourt is private property. No public right of way."
The Appellants appealed against the judge's decision on wording of the sign; the Respondents cross-appealed against her decision that the sign would have been visible to staircase users.
The appeal
On the visibility of the sign, the Upper Tribunal held that the judge had made no obvious error, her decision was supported by the evidence, and it was not obviously wrong. There was therefore no basis for interfering with her finding. The Upper Tribunal also rejected the argument that the judge had failed to take account of their evidence that they could not recall ever seeing the sign and that there was no evidence that any past staircase user had read the sign. The question was whether a reasonable user of the staircase would have seen the sign. The Respondents' evidence was therefore relevant, but not decisive and its weight was a matter for the judge and the the weight to be given any gap in the evidence was a matter for the judge.
As to the wording of the sign, the Upper Tribunal emphasized that it was for the user to show that their use was not contentious or allowed only under protest. The fundamental question was what the sign would convey to the reasonable user of the land: if it conveyed that the land was private and was not to be used by anyone other than the landowner and those authorised by them, the notice would be effective to render other use contentious. The test was thus objective and fact-specific.
In this case the statement that the staircase and forecourt were "private property" would convey to the reasonable user that the forecourt was private and could only be used by authorised users. In general, the identification of land as private property conveyed the message that persons other than the owner and those authorised by them could not enter the land or make use of it. The nature and content of the notice had to be examined in context. Here, the context was a small area of land which provided a shortcut from the pavement to the walkway. Stating that it was private property should have been sufficient to inform those using the staircase they were not entitled to do so. The judge had erred in regarding the "no public right of way" statement as the critical factor. The sign had to be read in a common-sense way, and the reasonable user would not have understood it to mean that although no public right of way existed, the exercise of a private right was not prohibited.
The sign was thus sufficient to prevent the use of the staircase from being as of right, and the Respondents were not entitled to a right of way by of prescription.
Lesson learnt
The case is good authority for the proposition that if there is a sign on the land which says "private property" or words to that effect, that it is unlikely that the prescriptive right of way can be claimed by adjoining land owners.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.