Lawbite: Prescriptive Rights vs Charity Land: The Limits of Lost Modern Grant

Summary

The Upper Tribunal recently determined two discrete points concerning the acquisition of a prescriptive right of way over charity-owned land in England and Wales under the doctrine of lost modern grant. Although this case involved charity-owned land, it is likely that similar principles will apply to other entities with limited powers of disposition, such as universities, colleges, religious institutions and statutory corporations. Such entities should be aware that whilst their protection against prescriptive easements acquisition has been affirmed by the Tribunal, those protections are not absolute.

The alleged right of way

The dispute centred on a claimed right of way over the car park of the Kingdom Hall of Jehovah’s Witnesses in Telford (“KH”).

Until 1958, KH and the neighbouring bungalow owned by the respondent, Mr Davies, had been in common ownership. In 1958 the bungalow was sold to Mr Davies’ predecessor. KH had been held on charitable trusts since 1967 and is now owned by a charitable company limited by guarantee.

Mr Davies argued that long-term use of the route over the car park since 1977 was sufficient to establish a prescriptive right of way under the doctrine of lost modern grant and the Prescription Act 1832.

Prescription

Prescription is a means of acquiring an easement (such as a right of way) over someone else’s land through a period of long user of 20 years. Under the Prescription Act 1832 the 20 year period of use needs to last up until the date on which the right is challenged by the land owner. Lost modern grant is an alternative that requires only a complete 20 year period at any time.

It relies upon the concept of a “fictional grant” by the owner of the land.

It had been established that there had been use of the KH as a right of way between 1977 and 2021. However, the quirk in the present case was that, because the KH had been held as charity land during the period of user, and because it is not normally possible for a charity to grant rights over land, this impacted the claim to the prescriptive easement.

Had the right been acquired over charity-owned land?

Two pivotal legal issues emerged in the case: the Vires Point and the Date Point.

The Vires Point questioned whether a fictional grant could be presumed against charity land, given that such a grant would have been ultra vires (i.e. acting beyond KH’s legal powers or authority) under the Charities Act 1960. The Tribunal upheld the decision of the First Tier Tribunal (“FTT”) that charities cannot be presumed to have made such grants without authority from the Court or the Charity Commissioner.

The Date Point asked whether a fictional grant could be presumed to have occurred before the land became charity-owned. The Tribunal agreed with the FTT that a grant could be presumed to have occurred during a period when a competent grantor existed—even if that predated the user relied upon. So in the present case, that fictional grant could have occurred between 1958 when the two properties came into separate ownership and 1967 when the KH became charitable land, even though this was before the user commenced in 1977.

Consequently, the appeal on both points was dismissed and the decision of the FTT was upheld that there was a right of way over the car park of the KH for the benefit of Mr Davies’ bungalow.

Takeaways

• charities holding land in England and Wales will continue to benefit from statutory protection arising because of the restrictions on dispositions under the Charities Act 1960. The Tribunal confirmed that private rights (such as easements) cannot be acquired by prescription if they rely on a fictitious grant that would have been ultra vires. This reinforces the legal safeguards surrounding charity-owned land (and similar entities)
• even if land is now held by a charity (or entity that is similarly restricted in terms of powers of disposal), a prescriptive easement may still be acquired if the fictional grant is presumed to have occurred before the land became charity owned. This means that historic ownership records and timelines will become even more crucial for those looking to establish third-party rights over charity land