Rights of Way – Have you acquired a Prescriptive Right?

In considering the case of South Tees Development Corporation v. PD Transport Limited [2024] EWHC 214 (Ch) in which the impact of signage on the ability or otherwise to acquire a right of way by prescription was reported, we delve into the history of prescriptive rights, what are they and how you can protect them.

Prescriptive rights (also known as easements by prescription) can be acquired over someone else’s property through long use. An easement is a right for one landowner to use someone else’s land for a specific use for example as a right of way over a private road or a right to lay an underground pipe.  Such rights are created through the passage of time rather than in a written deed.  To claim a prescriptive right of way you must be able to demonstrate:
•    two separately identifiable pieces of land that are subject to the easement. The land that benefits from the right of way is called the dominant land and the land that is burdened by it is called the servient land.
•    the use must have been for a period of 20 years or more. This must be continuous in that there cannot be unexplained periods of non-use within that timeframe.
•    The use has been exercised for a continuous period, without interruption or objection by the person who owns the land
•    It must have been exercised without any force, permission or secrecy. The law refers to these as “nec vi”, “nec clam” and “nec precario”. “Without force” means that the exercise of the right cannot be contentious or against the will of the landowner. “Without secrecy” prevents someone from acquiring an easement by deceit so for example only using an access road in the dead of night would bar a claim to a prescriptive right. “Without permission” means that if the owner of the land has consented to an arrangement then a prescriptive easement will not arise. 

The law on prescriptive easements is complex. Whether or not they exist is one matter but then it is often the case that the extent of the prescriptive easement needs to be investigated. This is because when a prescriptive easement is acquired the ongoing use of the easement is limited to its historical use. A good example of this is where a landowner acquires a right of way over a private road to access their paddock where they keep their horses. The easement acquired therefore is for that established purpose. What it is quite definitely not, is a right to use the road to access a new warehouse facility or housing estate. 

The basic principle of prescription is that if dominant landowner has exercised an easement over the servient land as demonstrated above, the servient landowner loses their ability to object to the exercise of the right and effectively consents to it being lawful.

Can I protect a prescriptive right of way?

Yes, the best way to do this is to formally document this in a Deed of Easement. This should be registered with the Land Registry who will record the right of way on the title to both the dominant and servient land, so for instance in the example above, the dominant landowner is the party who has acquired the right and the servient landowner is the party upon whose land the track is situate. Registering the acquired right will ensure that it is formally protected and can help guard against any disputes that may arise. 
However, it may be that the servient landowner may not agree to a Deed of Easement. In this case the prescriptive easement can be registered unilaterally by the dominant landowner.  This can be achieved by applying to the Land Registry. You will be expected to provide evidence of the right of way for instance how often it has been used and for what purpose.

 
What about signage?

There have been three significant cases in 2024 where one of the key issues was the impact of signage and whether a legible sign or signs may be enough to prevent use and any claims based on prescriptive rights.
Firstly, in South Tees Development Corporation v. PD Transport Limited [2024] EWHC 214 (Ch) it was alleged, unusually, that signs were relevant to whether the use of the roadway had been by permission (as opposed to by force) It was instead suggested that a sign saying “Private Road: No unauthorised vehicles beyond this point” impliedly authorised certain vehicles (being the ones which were not “unauthorised”), and so as to mean, in turn, that their presence had been by permission and could not have led to any prescriptive easement. The Judge was quick to dismiss that contention. As he confirmed, these were “completely prohibitive signs”, which “do not purport to confer permission on anyone”.

Secondly, In Nicholson v. Hale [2024] UKUT 00153 (LC), Edwin Johnson J, the Chamber President, selected what might be considered the simplest result. A sign which described the land over which the right of way had allegedly been acquired as “PRIVATE PROPERTY”, which gave rise to a“NO PUBLIC RIGHT OF WAY”, was described as making the use contentious. It therefore precluded the acquisition of any easement. As Edwin Johnson J, set out, “[w]hat has to be made clear is that the property is private and not to be used by others”. For “[i]f land is identified as private property, the message which this identification seems … 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 make use of it”. Further, such a notice was not to be taken as not preventing, or as not rendering contentious, any private pursuit. Rather it would be “wrong to treat the reasonable user as taking the wording to mean that, while no public right of way existed, the exercise of a private right was not prohibited”.

Thirdly and shortly after Nicholson, we saw in Sagier v. Kaur [2024] UKUT 217 (LC), Martin Rodger KC, the Deputy President, distinguished the earlier judgment. In this case the road over which the right was being asserted was, itself, asserted to be a private one. By this it was meant that not only was it private land but in addition an ‘unadopted’ road. The signage in question had stated: “No public right of way”. The tribunal found that, in the context of a private road, the assertion that there was to be no public right of way could have been addressed as much to the general public as to the purported dominant owners, who themselves owned houses on that road and who had therefore been crossing over the subject land. As such the reasonable reader in their position would not necessarily have appreciated the signs to have applied to their use of the land, as opposed to that of the general of the public whose use would no doubt have been objected to.  As a result, the signs had not prevented those who owned houses on the road the acquisition of private prescriptive rights.

The general take from Nicholson therefore is that sufficiently clear signs objecting to the presence of persons on land, irrespective of whether or not it is with a view to gaining a ‘public right’, will be capable, in most cases, of preventing the acquisition of a private right because of the application of the  general meaning of the message – i.e. that unauthorised access is forbidden.

If you need further advice or guidance with regards to Rights of Way and Prescriptive Rights, contact our specialist Litigation Team today on: 01926 491181 or email, 

Sioban Calcott - SiobanC@moore-tibbits.co.uk

Sarah Hiscock - SarahH@moore-tibbits.co.uk