The essential purpose of this article is to take a brief look at three recent 2024 cases which impact upon prescriptive easements, two of the cases involving signage and one involving a “cease and desist” letter.   

Background legal principles 

“User as of right” is fundamental to the successful acquisition of a prescriptive easement. In relation to prescriptive easements, a claimant must show that he has used the right in question as if he were entitled to it, for otherwise there is no ground for presuming that he enjoys it under a grant. The phrase “user as of right” is employed not only in the context of prescriptive acquisition of easements and profits, but also by the legislation concerning highways and town or village greens. Moreover, from an early age, property lawyers are taught that the user which will support a prescriptive claim must be user nec vi, nec clam, nec precario (without force, without secrecy, without permission).  

As regards nec vi (not by force), it is well established that forcible user extends not only to user by violence (as where a claimant to a right of way breaks open a locked gate) but also to user which is contentious or allowed only under protest. User is considered to be forcible “once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious.” (Newnham v Willison (1987) 56 P & CR 8, 19 per Kerr LJ).  

“A user is contentious when the servient owner is doing everything, consistently with his means and proportionately to the user, to contest and to endeavour to interrupt the user.” (Smith v Brudenell-Bruce [2002] 2 P & CR 4, 12 per Pumfrey J). 

Signage 

As regards signage, property lawyers of a certain vintage will recall the decision of the Court of Appeal in Winterburn v Bennett [2017] 1 WLR 646 in which it was held that the continuous presence of clearly visible signs could, without more, constitute sufficient steps on the part of the landowner to effectively indicate that it did not acquiesce in unlawful user, thus preventing such user from being “as of right” for the purposes of the doctrine of lost modern grant. The position was neatly summed up by David Richards LJ (as he then was) at paragraphs 40 and 41 when he said as follows:   

“40. In my judgment, there is no warrant in the authorities or in principle for requiring an owner of land to take these steps in order to prevent the wrongdoers from acquiring a legal right. 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, of course, take many forms and it may, as it has in a number of cases, take the form of writing letters of protest. 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 known to him orally or in writing, still less to go to the expense and trouble of legal proceedings. 

41.  The situation which has arisen in the present case is commonplace. Many millions of people in this country own property. Most people do not seek confrontation, whether orally or in writing, and in many cases, they may be concerned or even frightened of doing so. Most people do not have the means to bring legal proceedings. There is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs. The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land.” (emphasis added)   

In reaching the decision that they did, the Court of Appeal applied much of the reasoning of the Court of Appeal in Taylor v Betterment Properties (Weymouth) Ltd [2012] 2 P & CR 3, even though that was a commons registration case. 

Nicholson v Hale  

In Nicholson v Hale [2024] UKUT 153 (LC) (14 June 2024), Edwin Johnson J held (on appeal from Judge McAllister sitting in the FTT) that a sign which read “THIS STAIRCASE AND FORECOURT IS PRIVATE PROPERTY NO PUBLIC RIGHT OF WAY” and which ought to have been visible to, and legible by, persons using the way in question was sufficient to make use of the way “vi” and otherwise than as of right.    

As regards visibility of the sign, the question was whether a reasonable user of the staircase would have seen the sign. The respondents’ evidence that they could not recall ever seeing the sign was relevant, but not decisive. Its weight was a matter for the FTT judge, and there was no basis for interfering with her evaluation.  

As regards general principles of wording of any sign, the Judge reaffirmed that where an easement was claimed on the basis of prescription, the use relied upon had to be “as of right” and not by force. The user had to show that their use was not contentious or allowed only under protest. As one would expect, the Judge followed Winterburn v Bennett in that the continuous presence of a clearly visible and legible sign would, depending on its wording, be sufficient to render user contentious.  

Furthermore, 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. As such, the test was thus objective and fact specific.  

As regards the overall outcome, the FTT judge’s conclusion could not be upheld:   

• 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 FTT judge 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. They were not to be treated as making such legal distinctions. The “no public right of way” statement reinforced, rather than undermined, the identification of the forecourt as private property that was not open to unauthorised users.  

• 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 prescription.  

Sagier v Kaur  

However, the decision in Nicholason v Hale was distinguished by Martin Rodger KC in Sagier v Kaur [2024] UKUT 217 (LC) (29 July 2024) where the sign read “No Public Right of Way” (para.78). The Judge held that a reasonable reader of the sign, in the position of the claimant (who lived in a neighbouring property served by a private road) would understand the sign to be referring to members of the public and not neighbours. The Judge took into account the context and the background to the creation of the sign in reaching this conclusion. The Judge also held that if, contrary to his conclusion, the sign was ambiguous, then an ambiguous sign would not have sufficed to make the user contentious.  

Akhtar v Khan  

In Akhtar v Khan [2024] EWHC 1519 (Ch) (17 June 2024), the defendant was using the claimant’s land for car parking. The claimant sent the defendant a “cease and desist” letter calling for the user to stop. HHJ Richard Williams held that the letter had been received by the defendant and had made the continued user thereafter contentious and not “as of right.” The Judge went on to hold (para.141) that even if the letter had not been received by the defendant, the sending of the letter by recorded delivery and then by ordinary post was a reasonable and proportionate attempt to communicate the claimant’s protest to the defendant’s unauthorised use so that the claimant should not be held to have acquiesced in that use. “The cease and desist letter was expressed in clear and unambiguous terms, which would have brought home to the defendants that their continuing use of the Yard was contentious.” (para.139).  

Conclusions 

• The erection and maintenance of an appropriate, suitably worded sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. However, the wording of any sign, the location and context in which it was displayed are all very relevant factors.  

• If you are going to use signage, then think about: 

• How many signs to you need given the area of land in question and its topography;   

• Whereabouts the signs are to be located;   

• Precisely what the signs should say – avoid ambiguity;   

• What evidence you will gather to show that the signs have actually been erected and maintained.  

• If you are going to use a “cease and desist” letter, make sure that such letter is expressed in clear and unambiguous terms, which really emphasise to the recipient that their continuing use is contentious.