Mohammed Sagier v Harbans Kaur

For a prescriptive easement, use must be open and as of right. A warning sign defeats the claim only if, viewed in context, it clearly communicates to the relevant user that the owner objects to the use. An ambiguous reference to there being no public right of way may not prevent a private right accruing to neighbouring owners.

Under Prescription Act 1832, an interruption is disregarded unless it has been submitted to or acquiesced in for one year. That rule applies where the required 20 years’ use had already accrued before the interruption. The evidential burden shifts once open use for the necessary period is proved.

Mr Sagier appealed against a decision of the First-tier Tribunal (Property Chamber), made on 16 July 2023, directing cancellation of his application to register a private right of way over Mrs Kaur’s land.

The claimed route had been used by the owners of neighbouring houses since a housing development was completed in 1999. The FTT found that signs stating “No public right of way” had been displayed intermittently between about 2000 and 2005 and that there had been one oral protest. It rejected the claim based on both lost modern grant and the Prescription Act 1832.

The appeal concerned the effect of the statutory interruption provisions, the timing of the oral protest, and whether the signs clearly communicated an objection to use by neighbouring householders.

1. Appeal allowed. The Tribunal directed the Chief Land Registrar to give effect to Mr Sagier’s application for registration of the private right of way. If the fence remained, the original gap had to be reinstated or a gate and key provided.
2. Under sections 2 and 4 of the Prescription Act 1832, the relevant period was 20 years ending when proceedings were commenced. An interruption was not to be treated as an interruption unless it had been submitted to or acquiesced in for one year. The picket fence, erected on 27 September 2020 and followed by proceedings on 2 December 2020, therefore did not prevent reliance on the statutory claim. The FTT had failed to consider the second limb of section 4.
3. The single oral protest occurred after more than 20 years’ use. It was consequently irrelevant both to the statutory claim and to the claim based on lost modern grant.
4. A sign must be assessed by asking what it conveyed to a reasonable user standing in the position of the actual user. Its wording, context, location and the actual users’ response are relevant. The assessment should be common-sense rather than legalistic.
5. In the circumstances, “No public right of way” was ambiguous when directed to owners of houses on the private road. It appeared aimed at members of the public, while the physical layout suggested that at least some pedestrian use by residents was accepted. The signs therefore did not make the residents’ use contentious.
6. For the statutory claim, Mrs Kaur bore the evidential burden of showing that the use had been contentious. The evidence did not establish that the signs had been displayed continuously for a year, and the application should have succeeded.

• First-tier Tribunal (Property Chamber): on 16 July 2023 directed cancellation of the application to register the claimed right of way.
• Upper Tribunal (Lands Chamber): appeal allowed; registration directed under [2024] UKUT 217 (LC).