Acquiring easements by prescription

On 29th July 2024 the Upper Tribunal submitted its judgment in the case of Sagier v Kaur. The case dealt with the acquisition of easements by way of prescription (long use) and considered the issue of signs having been erected by the owner of the land in response to unauthorised persons using it for right of way. The importance both of the exact wording used on those signs and the context within which the circumstances arose was highlighted.

How long…before the barricades arise?

The facts were as follows:

• In 1999 nine houses were built on a new private road at the end of two existing roads (Pool Road and Victoria Park Road).
• The new private road was, in fact, a succession of the ends of the nine, separately owned, driveways.
• There was no designated footway but a narrow strip of land, neither paved nor tarmacked, adjoined railings at the far side of the road which separated the road from a neighbouring park.
• The new owners complained to the developer about drivers using the private road to pass from Pool Road to Victoria Park Road. As a result in 1999, the developer erected across the road a timber barrier, lower than knee height, stretching from the front wall of one of the properties (roughly in the middle of the nine) all the way to the park railings.
• The barrier prevented the passing of vehicles from one end of the private road to the other, but was low enough to allow any able-bodied pedestrian to step over it.
• Pedestrians – including those who lived on the private road – made regular use of the private road.
• The situation was not satisfactory. Drivers would still attempt to drive along the private road, come to the barrier and then have to U-turn in confined conditions to the annoyance of the residents of the private road. Also, pedestrians passed directly in front of houses, which were not separated from the private road by any garden or fence.
• In January 2000 the residents discussed and decided that one (a Mr Sidhu) would put up two signs, each stating “No Public Right of Way”. The signs were repeatedly removed by persons unknown and had to be replaced from time to time until about 2005, by which time the residents in question gave up replacing them.
• In 2000 or 2001 some of the owners at the Victoria Park Road end of the private road replaced the low timber barrier with a low metal fence, about waist high, in the same position. This was high enough to prevent anyone from comfortably stepping over it. However, those owners did not block the whole width of the private road with that fence. The new metal fence stopped short of the park railings by about six feet and, in that gap, they left the original low timber barrier. As a result, pedestrians continued to step over the timber barrier when going from one end of the private road to the other.
• On 27 September 2020 Mrs Kaur and her late husband of 60 Victoria Park Road erected a higher wooden barrier blocking the gap between the metal fence and the park railings and making it impossible for pedestrians to pass from one end of the road to the other.
• In 2021 Mrs Kaur and her late husband replaced both sections of fence with a much higher metal fence which was impossible to jump or climb over.
• On 2 December 2020 an owner of one of the other properties on the private road (Mr Sagier of Number 39 – on the Pool Road end of the barrier) applied to HM Land Registry for the registration of a right of way on foot over the end of the driveway of Number 60, said to have been acquired by long use by himself and his predecessor as owner of Number 39.

Acquiescence

The Tribunal summarised the law on prescription.

Rights over land belonging to another may be acquired by individuals, or the public in general, as a result of long use. The Tribunal noted that there were three ways in which this could be done but noted that the first (that use had commenced before 1189) was impossible to prove, and so did not consider it further.

Inference of a lost modern grant

Lost modern grant is a practical rule developed by judges to avoid the disturbance of long-established use. Proof of long use of the required quality and duration was taken to give rise to a legal (but admittedly fictional) presumption that a previous owner of the land must have done something to confer a lawful title on the user. Such grants will be presumed where the use has been enjoyed for a period of at least 20 years.

Acquiescence and the three characteristics

The use must have three characteristics. It cannot have been enjoyed by force, it cannot have been enjoyed secretly and it cannot have been enjoyed with the permission of the owner of the land.

In the case of Dalton v Angus (1881)6, app. Cas.740, 773 it was commented that “the whole law of prescription and the whole law which governs the presumption of inference of the grant… rest upon acquiescence”.

The owner of the land needs to know of the use (which it would not if the use was being carried out secretly), cannot have given permission for the use (if it had, then it would be that limited express permission which would govern the terms of the use, rather than any presumed grant) and cannot have been carried out by force (if it had, then the owner cannot be said to have acquiesced in the use).

It is use by force which is relevant to the issues in Sagier and will be returned to below.

Prescription Act 1832

Along with the fiction of a lost modern grant, the Prescription Act 1832 also provides for acquisition of rights over land by long use. The same requirements of use without force, secrecy or permission, and use without interruption for the full period of 20 years are required, as is the case with lost modern grant.

However, whereas the claim founded on the fiction of the lost modern grant can be based on 20 years use at any time, a claim under the 1832 Act requires that the period of use relied on must be “next or before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question”. Accordingly, the 20-year period must run up to the date on which proceedings in which the right or claims were disputed are commenced.

Section 4 of that act tempers the position by providing that the interruption must have been for more than one year) allowing use to have been interrupted though by a period of no more than one year (any less and the user can still seek to rely on the Prescription Act 1832).

“May the Force…”

“Force”, when considered in this context, is not limited to physical force or violence – the owner does not have to show that they took no action over the 20 years for fear of violent retribution.

Dalton suggested that what was required was “continuous and unmistakable protest” by the owner which would contradict any suggestion that the use of the land had been permitted by a fictional grant. Subsequent judgments have followed the suggestion and judicial decisions since then have included the following:

• “Once there is knowledge on the part of the [user] that his use is being objected to and that the use to which he claims has become contentious…” then use of the  land has become “forceful”.
• “If the use continues despite the neighbours’ protest and attempts to interrupt it, it is     treated as being “forceful” and so does not give rise to any right against [the owner]”.

In Winterburn v Bennett [2016] EWCA Civ 482 it was stated that “in circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be, “as of right”… Protest against unauthorised use may…take many forms…but I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers… still less to go to the expense and trouble of legal proceedings”.

Open up your eyes and see the sign

So, all the owner needs to do is erect a sign and use thereafter will be “with force”?

Well, in theory, yes, though there are still pitfalls for the owner when it comes to the wording of the sign.

To take a 2008 case, the owner of a golf course wanted to prevent neighbours wandering on to the course for recreational walks. It erected a sign stating “Warning, it is dangerous to trespass on the golf course”.

It was found that the wording was not sufficient to constitute an “unmistakable protest about the unauthorised use of the land”, quite simply, because it contained no such protest. It read merely as a warning to those users to be on their guard against danger.

A more complex situation arose in the case of Nicholson V Hale [2024] which was heard on the same day as Sagier, though judgment was delivered six weeks earlier.

In that case the owners owned a terraced property (4 Derby Terrace), and the users were owners of a property on the same terrace, next door but one, at 6 Derby Terrace. The users stated that they had acquired the right of way by prescription over an area at the front of Number 4, being a staircase and forecourt leading to a walkway.

The owners had erected a sign stating: “this staircase and forecourt is private property, no public right of way”.

Most of the arguments related to the owners’ use of the word “Public” in “No Public Right of Way”, when they could have stated “No Right of Way.” The user argued that use of the word “public” must have some significance, otherwise why include it. The user asserted that as it owned a neighbouring property in the terrace, its use was not being objected to and use of the word “public” meant it was only those who did not own properties in the terrace, and who were therefore members of the public, that were the target audience of the sign.

It was noted that the answer was based on what the sign conveyed to a reasonable person, and not the subjective interpretation of either the owner or the user. The Tribunal stated that it was “…Difficult to see what message [the sign] conveyed to the reasonable user other than that the land was private land and was not to be used by others”.

The Tribunal found that the reasonable user would not make legal distinctions between public and private rights of way, stating that a reasonable user would have understood that they had no right to make use of the land, on any basis.

Judgment in Sagier – just to make matters complicated

Taking the judgment in Nicholson (which had become available at that point) one might have thought that the same logic would apply – the word “public” would have no significance as the “reasonable user” would not distinguish between public and private rights of way.

However, this was not the outcome, and a number of points came out of the judgment.

S4 Prescription Act 1832 – interruption of the use

It was noted that by 27 September 2020 more than 20 years’ use of the claimed right had occurred. Though, the erection of the higher section of fence over the six-foot gap on that day interrupted that use, Mr Sagier brought his claim less than three months later.  Being less than 12 months this did not constitute an interruption of sufficient duration to defeat Mr Sagier’s claim under the 1832 Act.  

Similarly, the question was considered as to whether the signs which had been erected by Mr Sidhu had been displayed for at least a year such that there was an interruption for the purposes of the 1832 Act – the logic being that use would have been by “force” during that time, and so would be a period of interruption if over 12 months. Mrs Kaur bore the evidential burden, which she failed to discharge as the evidence showed only that signs were present on occasion during the period from 2000 to 2005. How often they had to be replaced and how long were the intervals between their removal of reinstatement, were not investigated.

Effect of the signs

However, the Tribunal had decided in favour of Mr Sagier at that point in any event. The Tribunal considered the assertion that the signs relied on were addressed to the public at large and not intended, nor were they sufficient, to convey to the owners of houses on the private road that their neighbours objected to their use of the claimed route to walk up and down their own street.

The Tribunal had regards to the very recent decision in Nicholson in which the word “public” in the “no public right of way” wording of the sign was effectively held to be superfluous. Anyone reading the sign in Nicholson was judged to be aware that the owner was asserting that there was no right of way whatsoever, whether public or private.

However, the tribunal felt able to come to a different conclusion based largely on the context in which the sign was displayed.

It started by considering “the fundamental question” as to “what the notice conveyed to the user”. If the user knew “…that the owner was objecting to and contesting his use of the land, the notice is effective to render [that use] contentious” and thereby “with force”.

Mr Sagier argued that the signs targeted only public use, and not use by the small group of people who lived on the road. He argued that the signs were “…plainly addressed to members of the public, not householders… living on the private road, some only a door or two away.”

The context was that the signs were erected on a new private road initially in January 2000, a few months after the developer had put up a low wooden barrier to discourage the use of the route by vehicles and stop pedestrian access through the gap between the metal fence and the park railings, over the low wooden barrier. The Tribunal asked itself “…to whom would a reasonable user of the claimed routes, who lived on the private road, understand that the signs were addressed?

“Such a user would have appreciated that the sign was aimed at pedestrians, since the way was already blocked to vehicles at that point”.

“[Moreover] Users would also have read the sign assuming that neither the developer, nor those owners who later put up the metal fence…can have intended to prevent all pedestrian access” due to the barrier being traversable by any able-bodied pedestrian, over the six foot section of that original barrier having been left even after erection of the metal fence in 2000.

The sign would not have been understood by the owners of houses on the private road as a message from their neighbours that they were not permitted to cross over the low wooden barrier and then over the sections of the private road which were owned by their neighbours. The Tribunal found the warning sufficiently ambiguous to allow it to conclude that Mr Sagier’s, use had not been with force, and that his right to cross the end of Number 60’s driveway on foot should therefore be recognised.

The Birketts view

The decision in Sagier shows that the Tribunal has significant discretion on the facts, which makes it difficult to predict the outcome of applications such as this.

The feature in Sagier, which distinguished that case from Nicholson, was the background context in which the nine property owners of the private road were all in the same boat, which gave credence to the argument that the word “public”, in the sign, could be understood as distinguishing owners of properties on the private road from the public at large.

The extremely wide definition of “force”, and the judicial comments that landowners should not have to confront users in more direct terms, or commence proceedings in order to protect their rights, are noted and welcome.

If signage is to be used then landowners are advised not to make things so complicated – it is hard to see anything ambiguous or objectionable with the simple wording “Private land – No Right of Way”.