Prescriptive easements and charity land
The recent decision by the Upper Tribunal (UT) in Kingdom Hall Trust v Davies [2025] clarified two points on the acquisition of easements over land held on charitable trusts.
The case concerned a claimed right of way over land held by the Kingdom Hall Trust (KHT), a charitable company. Mr Davies, the claimant, claimed a right of way by prescription over KHT's car park (land adjacent to his), based on long term enjoyment of that right.
Both parcels of land had been in common ownership until 1958. In 1958, the land now owned by Mr Davies was sold. In 1967, the remainder of the land was conveyed to KHT's predecessor to be held upon express charitable trusts.
In 1997, KHT obtained unregistered title to the land. In 2017, Mr Davies lodged a caution against first registration of KHT's land, asserting a right of way by prescription. KHT disputed the existence of this alleged right of way and applied for first registration of the land in 2022.
Prescriptive easements
In order to establish a private right over land by prescription, there must be long term use of the claimed right of way, exercised as of right. Such rights may arise either under section 2 of the Prescription Act 1832 (which gives statutory effect to long enjoyment) or under the common law doctrine of lost modern grant (which proceeds on the basis of a presumed historical grant by a competent grantor). In both cases, the existence of a competent grantor of the right is essential.
Charity land presents a particular difficulty since any disposal by a charity of an interest in land (which includes the grant of an easement) must comply with the restrictions set out in the Charities Act 2011 and typically requires court or Charity Commission approval.
Since prescriptive easements rest on the presumption of a grant, and such a grant by a charity would be outside of its powers (i.e. ultra vires) without the input of the court or the Charity Commission, charities lack the capacity to make a lawful grant and cannot, therefore, be a competent grantor.
The First-tier Tribunal
The First-tier Tribunal (FTT) found there was insufficient evidence of use of the alleged right of way from 1958-1977, but sufficient evidence of user from 1977 and 2021. Since the land had been held upon charitable trusts since 1967, no disposition of the land after that date (including a grant of an easement) could have validly been made by the charity without an order of the court of the Charity Commission.
Nevertheless, the FTT held that the presumed grant of an easement did not have to occur immediately before the period of user relied upon. Rather, it was sufficient if the grant could have lawfully been made at some earlier point, including before the land was held by KHT.
In this case, the FTT held that the fictional grant of the easement could be presumed to have occurred between 1958 (when the common ownership of the land ceased) and 1967 (when KHT land became subject to the charitable trusts), even though there was insufficient evidence of user during this period.
The Upper Tribunal
Kingdom Hall Trust appealed the First-tier Tribunal's decision to the Upper Tribunal (Lands Chamber) on the grounds that it could not combine a period of non-use by Mr Davies, when a grant of an easement could have been made (ie before the land was owned by KHT), with a period of use by Mr Davies when a grant of an easement could not have been made (i.e. after the land came into the ownership of KHT).
KHT argued that the key elements of both the use of the right of way by the claimant and the competence of the grantor to make the grant had to be present (i.e. coincide in time) for a grant of the easement to be presumed.
Mr Davies cross-appealed on the vires point, arguing that the Charities Act 2011 did not preclude the acquisition of rights by prescription and that the Prescription Act 1832 provided express statutory authority for such rights and the charity was, therefore, a competent grantor.
The Upper Tribunal upheld the FTT's decision, dismissing both the appeal and cross-appeal.
THE VIRES POINT. Firstly, the UT confirmed that a competent grantor is essential for a valid prescriptive easement claim and that private rights (including easements by prescription) cannot generally be acquired against land held by a charity, because such a grant would be outside the charity's powers under the Charities Act 2011.
The UT rejected Mr Davies' argument that the Prescription Act 1832 provided authority for a charity to make the fictional grant, noting that the Act does not expressly empower charities to grant easements or to acquiesce in conduct which might be taken to give rise to a lost modern grant.
THE DATE POINT. The Upper Tribunal then agreed with the FTT's decision on the date point, holding that a presumed grant need not take place at any specific time. In particular there was no need for it to take place immediately before the commencement of the period of user.
The key timing requirements were that the presumed grant must be post-1189 (in order to qualify as a lost modern grant), it must occur before the start of the minimum period of prescriptive user relied upon (in this case, 20 years' enjoyment of the land was required), and it must be possible to identify a time within that period when a competent grantor could have made the grant.
Importantly, the UT held that the actual user relied upon did not need to be use against a competent grantor.
Implications of the decision
CHARITY LAND IS NOT IMMUNE TO PRESCRIPTION CLAIMS. Whilst the decision confirms established law that charities are not competent grantors in relation to prescriptive easements, a claimant may still succeed in a claim for a prescriptive easement against a charity if they can identify a window in time (however far back) when the land was not held on charitable trusts and a competent grantor existed.
This is notwithstanding the long term user relied upon took place during a period when a grant of the right of way could not have been made because the land was held on charitable trusts.
THE COURTS ARE WILLING TO ADOPT A FLEXIBLE APPROACH TO THE DOCTRINE OF LOST MODERN GRANT. This case highlights that the courts are willing to prioritise long term enjoyment of a right of way and the practical realities of the use of the land, in order to give effect to the principle of the doctrine of prescriptive easements.
It is a somewhat surprising approach since the courts have tended to adopt a benevolent approach towards charities in order to support the vital public function they provide. Also one might expect that in this situation the courts would have taken a stricter approach to a prescription claim against a charity, requiring both the user and the competent grant to be aligned in terms of time.
STRATEGIC CONSIDERATIONS FOR CHARITY LANDOWNERS. Charities should be vigilant in monitoring their land, including who has access to it and on what terms. Charities with large, complex or historic land-ownings may not be aware of the true boundaries of their land or where others have been enjoying rights of way without any specific formalities being in place.
Charities should clarify all access rights over their land to prevent unintended private rights from arising. Charity trustees should also be aware that one of their fiduciary duties is to ensure responsible management of the charity's assets and this includes in respect of the charity's land.
STRATEGIC CONSIDERATIONS FOR CLAIMANTS. Potential claimants might be reassured that even where land is held by a charity, it may not be immune to a claim for a prescriptive easement over that land if a competent grantor can be identified in the historical chain of title.
Lawful origin
The tribunal was happy in this case to identify a lawful origin for the prescriptive right, even if the actual user occurred during a period when the grant could not lawfully have been made. The tribunal did not require the presumed grant to coincide with the start of long user. It was sufficient that, after 1189 and before the actual user began, there was a time when a competent grantor could lawfully have made the grant.
The judgment means that a prescriptive right can arise from a combination of two elements that individually would not suffice, namely (1) a period of non-use when a grant could have been made; and (2) a period of long use when a grant could not have been made.
The decision reflects a pragmatic approach to resolving complex property disputes and is important for all institutions whose powers are limited by statute, including charities, colleges, universities, religious institutions and statutory corporations.
