In The Kingdom Hall Trust v Davies [2025] UKUT 294 (LC), the Upper Tribunal clarified the limits on acquiring prescriptive easements over charity-owned property. 

Prescriptive easements 

A prescriptive easement is a right to use third-party land acquired through long, uninterrupted use (at least 20 years), without force, secrecy, or permission. In this way, rights such as access or lights over land can be created.

A prescriptive easement can arise through any historic 20-year period (known as the doctrine of lost modern grant, which presumes a fictional grant by the owner of the land to the user of the land). It may also be acquired under common law or under the Prescription Act 1832, however the qualifying 20-year period must run continuously up to the date the right is challenged (rather than any historic 20-year period). 

The case 

Mr Davies asserted that he had a prescriptive easement to travel across a car park owned by The Kingdom Hall Trust. 

The Tribunal was asked to consider whether a prescriptive easement could arise where the land in question was charity-owned. The Tribunal had to consider: 

• whether a charity could be a ‘competent grantor’ for the purposes of allowing a fictional grant of an easement; and
• whether the doctrine of lost modern grant could apply by presuming a fictional grant before the charity came into ownership of the land in question. 

The decision

Where a charity grants an easement, this constitutes a land disposal which requires prior consent from either the Charity Commission or the Court. Any grant made without such approval would fall outside a charity’s powers. The tribunal concluded that a charity cannot be deemed to have made a fictional grant during its ownership because it lacks the legal capacity to do so; a charity cannot be a competent grantor.

As such, in this case, The Kingdom Hall Trust could not have been presumed to have made the fictional grant to Mr Davies. 

If the fictional grant was given before the land became charity-owned, when the previous owner was a competent grantor, the doctrine of lost modern grant can still apply. The presumed grant doesn't need to be given immediately before the 20-year period relied upon and can be given at an earlier date. 

In this case, it was held that the previous owner was a competent grantor who was presumed to have given the fictional grant to Mr Davies. The Tribunal, therefore, held that Mr Davies did have a prescriptive easement over The Kingdom Hall Trust’s car park. 

Key takeaways 

A prescriptive easement cannot arise where the supposed grantor is a charity, as charities lack the legal capacity to make such a grant. In this sense, charities are protected against claims for prescriptive easements during their ownership of the land. 

If, however, a previous owner was a competent grantor, the court is willing to hold that a prescriptive easement has arisen. Therefore, the protection charities enjoy depends on the absence of any previous ownership by competent grantors. 

For tailored advice on this matter, or any other property dispute, please contact Phil Scully or Rhys Baker in our Commercial Property Litigation team.