Prescriptive easements and charity land: An unusual ruling on timing and legal powers

A recent decision by the Upper Tribunal (Lands Chamber) confirmed the existence of a right of way arisen by prescription over charity land, as explained below.

The dispute concerned a right of way over the land known as the Kingdom Hall of Jehovah’s Witnesses (KH Land) for the benefit of land owned by Mr Davies (Davies Land).

Background

In 1958, the two properties comprising KH Land and Davies Land were split from being in common ownership.

In 1967, KH Land was acquired by charitable trusts which prevented the owners of KH Land from granting a right of way over its land without the court or charity commission’s permission.

From 1977 – 2021, evidence of the use of a right of way over KH Land to Davies Land is established for this period.

In 2017, Davies lodged a caution against first registration of KH Land.

When the owners of KH Land sought to register KH Land, they wanted to do so free from the right alleged by Davies that was protected by the caution.

The law

Briefly, easements, like a right of way, can arise through long-use where the use has been “as of right” i.e. without force, secrecy or permission, typically for 20 years.

The 3 ways in which a prescriptive easement can be claimed is (1) common law prescription (2) under the doctrine of Lost Modern Grant and (3) under the Prescription Act 1832 (PA).

Davies relied on Lost Modern Grant and/or the PA to establish the easement.

Under the doctrine of Lost Modern Grant, if an easement has been enjoyed for at least 20 years, it is presumed to have had its origin in a deed made after 1189 and that the deed is lost.

However, reliance of Lost Modern Grant will fail if the parties to the imaginary grant of an easement were in some way incompetent i.e. unable to create the easement.

Under the PA, when 20 years’ use can be evidenced, a prescriptive right can arise as a defence to a claim that the right / easement did not exist in 1189 and the right will crystallise when a “legal suit or action” is made. If 40 years’ use can be evidenced then the easement is “absolute and indefeasible”.

The First-tier Tribunal

The Tribunal found that there was insufficient evidence of use of the alleged right of way to support the claim in the period from 1959 to 1977, but found sufficient evidence from 1977 to 2021 of regular use of the purported right of way.

As KH Land was charity land since 1967, a right of way could not have been granted from this date without the court or charity commission’s consent i.e. it was not a competent grantor. KH purporting to grant an easement over its charity land absent of the court or commission’s consent would have been void and ultra vires and no grant could be presumed.

The Tribunal held that the presumed (or imaginary) grant of the easement (see Lost Modern Grant point above) did not have to start immediately before the period of use relied on i.e. the presumed grant did not have to start in 1977 when the use of the right of way commenced but could have been granted before the land became charity land.

The appeal

The Upper Tribunal upheld the First-tier Tribunal’s decision:

1. Confirming that prescription cannot override the legal limits placed on a landowner’s powers. So, easements cannot generally be acquired by prescription against charity land, because charity trustees lack the authority to grant such rights without proper approval. However…
2. A presumed grant of an easement does not have to occur immediately before the use being relied upon. It is sufficient if the grant could have been lawfully made at any point before the prescriptive use began, even if that was long before the start of the user period.

The evidence used to establish an easement (i.e. 1977 – 2021) was during a period when an easement could not be lawfully granted because the land was charity land.

The court presumed a fictional grant sometime between 1958 and 1967, when such a grant would have been legally possible as being made at some point in time prior to the requisite enjoyment relied upon.

Beyond charities – wider implications

While this case specifically involved charity land, the ruling may have wider implications for those such as Universities, Church of England and statutory corporations whose powers of disposition are limited.

In such cases, where a grant of easement would be beyond the entity’s powers, the ability to rely on an earlier “window” of competence, even decades before the actual use, could affect both the acquisition and defence of prescriptive rights.

Final thoughts

This case serves as a reminder of the complexity surrounding prescriptive rights, particularly when statutory limits or fiduciary duties restrict a landowner’s legal powers.

If you are dealing with a dispute over access rights or easements, particularly involving charity land or institutions, we recommend seeking legal advice. Please do get in touch with us with any queries or concerns.