Prescription and charity land – Has a recent case redefined the scope of prescriptive claims?
The recent case of ‘The Kingdom Hall Trust v Davies’ appears to have redefined the scope of prescriptive claims, specifically in the context of land owned by third sector organisations such as charities. Luke Holden and Ellena Pritchard in our Land and Property Dispute Resolution team look at the implications in more detail.
What is Prescription?
It is common for circumstances to arise where access to private land is required without the need for legal ownership over it. For example, utility companies are often required to access private land to maintain services like gas and electricity supplies yet have no reason to own every plot of land with access to a substation. Such an arrangement is known as an “easement” and typically arises through a deed or agreement between two parties.
However, an easement may also arise through what is known as “prescription”, often referred to as “the 20-year rule”. Under the Prescription Act 1832 or the Doctrine of Lost Modern Grant, an easement can arise without the need for a formal agreement but rather through the consistent, uninterrupted use of land over a considerable period of time. Crucially, this continuous use must be without secrecy, without permission, and without force.
Indeed, the concept of prescription is a fundamental principle of land and property law which, on the face of it, appears relatively straightforward. However, the recent case of The Kingdom Hall Trust v Davies [2025] UKUT 294 (LC) highlights that the granting of prescriptive rights is not so straight forward when the land in question is owned by a charity.
Case background
The Respondent claimed that a prescriptive right of way, with and without vehicles, had been established through the rear of Telford Kingdom Hall to and from their private residence, which had been held in common ownership. Interestingly, Kingdom Hall had been held by the Appellant and its predecessors in title on trust for charitable purposes since 1967.
Consequently, a disposition of the land could not be validly made without an order of the Court or the Charity Commissioners.
In consideration of the facts, the First Tier Tribunal decided two key points:
- The Vires Point: the acquisition of an easement through prescription rests on the presumption of a grant. The appellant in this instance did not have authority to grant an easement over the land it held on trust and, therefore, was not considered a “competent grantor”.
- The Date Point: While the appellant was not in a position to grant rights over the land, it can however be presumed that a grant was made before the tenement came to be owned by a charity in 1967. In this respect, an order of the Court or Charity Commissioner would not be necessary in order for a prescriptive easement to arise.
As a result of this reasoning, the First Tier Tribunal upheld the Respondent’s claim to an easement and this decision was ultimately affirmed on appeal to the Upper Tribunal.
Implications
On the one hand, this decision highlights that land-owning charities and other third sector bodies in England and Wales will continue to benefit from the statutory protection afforded by the Charities Act 1960 in respect of claims of prescription.
On the other hand, this decision illustrates that the courts are willing to consider the historic ownership of land in search of a competent grantor and, where one is found, are happy to presume that a grant was made.
Therefore, while the aforementioned protection against prescriptive claims has been recognised for the first time, the scope of said protection is somewhat limited and rests on the non-existence of a prior competent grantor.
If you need specific advice on this issue, or any other land and property dispute matter, please get in touch with our land and property dispute resolution team on 01772 258321.