The Upper Tribunal (UT) heard a legal dispute over a right of way, examining how the longstanding use of land can affect property ownership and a landowner's legal capacity to grant such rights.
Facts:
Until 1958, the lands known as Kingdom Hall and Pleasington were in common ownership. A conveyance, dated 10 February 1958, separated the two properties. After various intermediate dispositions, Kingdom Hall was conveyed to four named trustees of the Telford Oakengates Congregation of Jehovah's Witnesses on 17 July 1967 as a place of worship.
On 29 May 1997, the appellant obtained unregistered title to Kingdom Hall. Mr. Davies acquired registered title to Pleasington in tranches between 2014 and 2016 and lodged a caution against the registration over Kingdom Hall on 10 February 2017. On 12 June 2020, the congregation assigned its beneficial interest in Kingdom Hall to the appellant.
On 11 February 2021, the appellant disputed the existence of the alleged right of way over the car park, and on 12 April 2022, it applied for first registration of title to Kingdom Hall free of any such right. The dispute was referred to the First-tier Tribunal (FTT) in July 2023, which concluded that, prima facie, rights cannot be acquired by prescription over charity land because the owner is not a competent grantor. The FTT 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.
Decision:
The UT dismissed the appeal by Kingdom Hall and the cross-appeal by Mr. Davies. The Tribunal held that a charity was not a competent grantor for the purposes of granting an easement by prescription, and a prescriptive right of way existed over the Kingdom Hall car park for the benefit of Mr. Davies’ property. The Tribunal's reasoning upheld the principle that such a right could be acquired through longstanding use, even against land now held by a charity, because a "lost modern grant" of the right could be presumed to have been made during an earlier period when the land was not held by a charity and there was a competent grantor.
The Tribunal agreed with the FTT that a charity’s land is protected by the Charities Act. A charity could not have legally granted an easement over its property without the consent of the Court or the Charity Commissioners, and this consent cannot be presumed. Therefore, a prescriptive right of way could not have been acquired against the charity by way of a fictional grant.
The Tribunal concluded that a fictional grant did not need to be presumed to have occurred at the beginning of the period of use. Instead, the legal doctrine only requires that a capable grantor could have existed at some time before the prescriptive period began. The Tribunal rejected the appellant's argument that the grantor must be the servient owner at the start of the user period. Instead, the legal doctrine only requires that a capable grantor could have existed at some time before the prescriptive period began.
Implications:
This case confirms that charities are not immune to claims for prescriptive easements. While the Charities Act protects charity land from being disposed of without consent (meaning an easement cannot be acquired by prescription against the charity itself), the Court found a way around this. The key implication is that if the servient land was held by a non-charitable owner at any time in the past, a prescriptive right can be established based on that historical possibility. This means that anyone claiming a prescriptive right over charity land can look back to a time before the land became charitable to find a capable grantor, thereby bypassing the statutory protections.
The judgement reinforces that the doctrine of a "lost modern grant" is a pure legal fiction. It does not require evidence that a grant was ever made, or even that the notional grantor was the owner at the time the user began. The Court confirmed that it is a flexible tool designed to give a lawful origin to longstanding use. The only requirement is that a competent grantor could have existed sometime before the prescriptive period commenced. This ruling gives a broad application to the doctrine, making it a powerful tool for establishing easements.