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Easements, prescription and charity land: Upper Tribunal decides two novel points of law

 

The Kingdom Hall Trust v Davies [2025] UKUT 294 (LC) 

On 29 August 2025 the Upper Tribunal (HHJ Cadwallader) decided two novel points of law concerning the acquisition of easements over land owned by charities.  

Background

The respondent claimed a right of way by prescription (lost modern grant and/or PA 1832) with and without vehicles over the rear of the Telford Kingdom Hall to and from the respondent's private residence.  

The lands had been in common ownership until 1958; so no such easement could have arisen by prescription at this stage.  

The FTT held there was then insufficient evidence of user of the alleged right of way between 1959 and 1977; but that user as of right was proven from 1977 onwards. 

However, at all times since 1967 the appellant’s land had been held by the appellant and its predecessors on trust for charitable purposes and occupied for those purposes as a place of worship, with the result that no “disposition” of the Land could validly be made without an order of the Court or the Charity Commissioners (s.29 Charities Act 1960 and equivalent provisions in the 1992, 1993, now re-enacted in materially the same form in ss.117-123 Charities Act 2011[1]). 

FTT Decision  

The FTT (Judge Ewan Paton) accordingly held that, prima facie, rights cannot be acquired by prescription over charity land because the owner of such land is not a competent grantor (“the Vires Point”). This is because prescription both at common law and under the PA 1832 rests on the presumption of a grant [2]; but no such grant can be made over charity land without an order of the Court or the Charity Commissioners by reason of the aforesaid statutory provisions (and the court cannot simply presume the consent of the Court or the Commissioners [3]). Any grant by the appellant alone would have been void to confer a right of way. 

However, the FTT nonetheless upheld the claim to an easement on the basis that the putative grant could simply be presumed to have been made at any time between 1958 and 1967, at a time when the would-be dominant and servient tenements were in diverse ownership but before the would-be dominant tenement became charity land (and so in the ownership of someone not competent to grant such rights without more) (“the Date Point”).   

Appeal to the Upper Tribunal

The appellant appealed on the Date Point arguing that the FTT was wrong to hold that a combination of non-use of the alleged way at a time when a grant could validly have been made (between 1958 and 1967) coupled with evidence of long-use of the way at a time when a grant could not validly have been made (from 1977 onwards) – neither of which could suffice to found a prescriptive claim alone – could when taken together add up to an effective presumed grant. The key elements of both acquiescence in user, and capacity to grant, must be present together before a grant can be presumed

Although there is apparently no direct case where this specific scenario has been considered in the Courts to date, there is support in the texts, authorities and the Law Commission’s reports on easements [4] and charities [5] for a “broad view” – to the effect that charities are effectively immune to prescriptive claims, because enjoyment against them can never give rise to prescriptive title – or, alternatively, a “narrow view” – to the effect that the prescription clock does not begin to tick if the owner at the commencement of the use relied on is not a competent grantor.

The respondent cross-appealed on the Vires Point, arguing that the appellant was a competent grantor, because s.29(3)(a) Charities Act 1960 (and its equivalent successor provisions) exempts from the general scope of those provisions “any transaction for which general or special authority is expressly given (without the authority being made subject to the sanction of an order) by any statutory provision contained in or having effect under an Act of Parliament” – the argument being the Prescription Act 1832 gives express authority for the acquisition of such rights.

The Upper Tribunal held

1. The FTT had correctly decided the Vires Point: if land has always been in charitable ownership, no claim to prescription can be made against the land. The argument that s.29(3)(a) is intended to carve out exceptions for the acquisition of prescriptive rights strained unsustainably the plain wording of that provision, which applies only to transactions explicitly authorised by statute (such as compulsory purchase orders).
2. The FTT had also reached the correct conclusion on the Date Point. In the Upper Tribunal’s view (at [72]), having considered a range of authorities and materials on the point:

"there is no reason to suppose that the presumed grant need take place at any particular time (and in particular it need not take place immediately before the commencement of the relevant user), save that it must be since 1189 (or it would not be lost modern grant), and before the commencement of the minimum period of prescriptive user relied upon (or it could not justify that user); and it must be possible to identify a time within that period at which such a grant could have been made by a capable grantor (or it does not produce a lawful origin for the user); and the user relied upon must be user as of right by and against the fee simple for the appropriate period.  But the user relied upon need not be user against a competent grantor.”  

The appeal and cross-appeal were dismissed accordingly.

Commentary

The tens of thousands of land-owning Charities in England and Wales – as well as colleges, universities, religious institutions and other bodies whose powers to dispose of their land are limited by statute – should therefore be aware that while their apparent protection against prescriptive claims has been recognised and upheld for the first time, that protection is in fact much narrower than may have been appreciated.

Once 20 years' enjoyment is established, the Court's "great powers of imagination" [6] in seeking out a fictitious grant on which to support a prescription claim apparently permits searching very far back in time indeed in search of a competent grantor.

More generally, the decision clarifies the limited scope of the defence of grantor incompetence to claims in prescription. Those asserting or defending prescriptive claims will need to keep in mind that the status of the person against whom user is enjoyed is only part of the story – and may even now be besides the point entirely. 

The full judgment is available here. 

James Tipler acted for the appellant, having secured permission to appeal for the Kingdom Hall Trust on the Date Point.

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