The 2024 Nicholson v Hale case revolves around a dispute over a private staircase, with the key issue being whether the respondents acquired a prescriptive right of way by long-term use.
Prescriptive rights of way typically arise when an individual uses a path or route openly and without permission for a continuous period, usually 20 years or more. However, this right can be challenged when clear actions are taken by the landowner to prevent it.
In Nicholson v Hale, the Upper Tribunal's decision emphasized that a "Private Property" sign erected by the appellant was sufficient to interrupt the continuity of use by the respondents. The sign demonstrated the appellant's intent to prevent public use, reinforcing the principle that landowners can protect their property rights by clearly communicating restrictions.
Prescriptive Rights of Way
Prescriptive rights of way are rights acquired through long-standing use rather than formal legal agreement. They are generally based on the following criteria:
1. use must be without force
2. use must be without secrecy
3. use must be without permission
For a prescriptive right to be recognised, the claimant must prove continuous and unchallenged use of the land for at least 20 years.
However, prescriptive rights can be defeated if the landowner takes effective steps to prevent them. A landowner can block access, seek legal action, or install signs clearly indicating private ownership or restricted access.
The Impact of Private Property Signs
The Nicholson v Hale case highlights the significance of clear, visible signage in preventing the acquisition of prescriptive rights. By installing a "Private Property" sign, a landowner demonstrates their intent to restrict the unauthorised use of their land. Courts have consistently upheld that such signs are strong evidence that the use is not being tolerated or overlooked by the landowner, thereby negating the requirements for prescriptive rights.
Private property signs must be prominent and unambiguous to be effective. In Nicholson v Hale, the tribunal found that the sign's placement and wording made it clear that the staircase was not intended for public or third-party use, thus breaking the continuity required for the respondents to claim a right of way.
Conclusion
The Nicholson v Hale decision underscores the importance of property owners taking steps to prevent the acquisition of unwanted prescriptive rights. Clear signage, as seen in this case, can be a simple but powerful tool in protecting private property rights.
Navigating the intricacies of prescriptive rights of way can be challenging.
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.
