Lost, found, lost again: lost modern grant, charity land and clothing easements with legal rights

Summary

The Court of Appeal (“CA”) has held that a right of way cannot be acquired by lost modern grant (“LMG”) over land owned by a charity throughout the period of use. Found by two tribunals, the grant has now been lost again. After more than 40 years of open use, the owner of Pleasington will not be thanking the court. So what can we find in the case?

• The issue - can an easement arise by LMG over land owned by a charity throughout the use, where no court order or Charity Commission consent authorised a grant?
• The tribunals - the First-tier Tribunal (“FTT”) and Upper Tribunal (“UT”) said yes. They presumed a grant between 1958 and 1967, before the land became charity land and some ten years before the use began (“the Date Point”).
• The outcome - the CA allowed the appeal. A grant can only be presumed against a competent grantor during the period of use relied on. No competent grantor, no easement.
• The wider point – any right said to arise by LMG, particularly a right of light or a right of way, now needs closer scrutiny. Who owned the land during the use can be decisive, and that matters for value, deal risk and negotiating leverage.

The facts

Mr Davies claimed a pedestrian and vehicular right of way over the car park behind the Telford Kingdom Hall of Jehovah’s Witnesses, for the benefit of his home, Pleasington. The two properties were in common ownership until 10 February 1958. From 17 July 1967 the Kingdom Hall was held on charitable trusts. Use as of right was proven only from 24 August 1977 to 11 February 2021.

Section 29 of the Charities Act 1960 (now replaced by the Charities Act 2011) prohibited dispositions of charity land without a court order or Charity Commissioners’ consent. It was common ground that this caught the grant of an easement, actual or fictional, so there was no competent grantor at any point during the use. The FTT and UT got round this by reaching back to the pre-charity window. The CA would not.

Remarkably, this is a first

Given the thousands of charities, churches, colleges and other landowners with restricted powers, it is remarkable that this point had never been directly litigated. Counsel for the Trust noted after the UT decision that there appeared to be no direct authority. Even now, one related question is left open: what happens where use begins against a competent grantor but continues after the land passes to a charity or other body without power to grant?

Summary of LMG 

Prescription has been aptly described as a “jungle” (see our previous article, Access easements: ancient law, modern problems, lost modern grant). There are three routes:

• Time immemorial - use since 1189. Easily defeated by showing the right could not have existed since then. Seldom seen!
• LMG - 20 years’ use without force, secrecy or permission, by and against the freehold owner. The court presumes a grant made after 1189 and since lost. Evidence that no grant was made cannot rebut it, but proof that nobody could have made one can. Any 20-year period will do, even if the use has long since ceased.
• The Prescription Act 1832 – a statutory route, but the 20 years must run up to the claim. That is why LMG is so often the fallback.

Kingdom Hall qualifies that last point: the 20 years must be enjoyed against someone who could have made the grant.

The decision

Lewison LJ’s judgment is a thorough tour of two centuries of LMG authority. The Tribunals had relied on a passage in Tehidy Minerals v Norman which, read literally, allowed a grant to be presumed at any time before the 20-year period began. The CA held that the passage was obiter, unsupported by earlier authority and inconsistent with the principle on which the doctrine rests. Tehidy gave no “roving commission” to search back decades, or centuries, for a willing grantor.

The reasoning is simple. Prescription rests on acquiescence: an owner who knows of the use, could stop it, and does not. Nobody can acquiesce in use that has not yet begun. The presumption exists to justify the continuation of long use, not to rewrite history.

Rights of light - “other than access of light”

Several of the authorities reviewed are rights of light cases. Yet the CA also cited the Supreme Court in Newhaven Port and Properties v East Sussex CC, which confirms that the servient owner’s capacity matters for prescription of private easements “other than access of light”.

The distinction is section 3 of the 1832 Act. A right of light arises from 20 years’ uninterrupted enjoyment, unless enjoyed by written consent or agreement. It does not rely on the fiction of a grant, so the servient owner’s incapacity does not usually defeat it.

But section 3 is not always available, because the 20 years must run up to the claim. When the statutory route fails, LMG is the usual fallback, and Kingdom Hall then applies with full force.

Rights of light reports, and market practice, often treat LMG as a safe fallback. Kingdom Hall shows it is not. Who owned the neighbouring land when the windows were first enjoyed, and throughout the 20 years? If it was a charity, a church, the Crown or a statutory body, the claimed right may not exist at all. For developers, that can change the risk profile of a scheme, the cost of insurance and the leverage in any negotiation. For neighbours, it is a reason to check their position before relying on it.

Law v development- time for reform?

There is a desperate need for new homes, and easements can stand in the way. As we said of restrictive covenants in Playing Ball in a changing game, a single line on a title register can be the thinnest yet strongest red tape impeding development. In that article we asked whether a pragmatic, development-friendly approach would survive higher stakes. Here, at appeal court level, principle won, albeit over a car park rather than a major scheme. Would the outcome be different if it were (see e.g. the recent Cooper/Powell v Ludgate rights of light case)?

Reform is not a new idea. The Law Commission’s 2011 report, Making Land Work (Law Com No 327), recommended abolishing the fiction of grant and replacing the existing routes with a single statutory scheme. Its 2014 report on Rights to Light (Law Com No 356) proposed, among other things, a statutory notice procedure to flush out claims and a statutory test for when damages should replace an injunction. Neither has been implemented.

Made by judges, mended by Parliament?

There is an irony here. As Males LJ observed, LMG was devised by the judges. It is a legal fiction, and he put it with a flourish: “Nobody is so foolish as to believe that there was actually such a grant on some unknown date since the death of King Henry II”. Yet while accepting that the result seemed harsh, he held that these historical anomalies are now firmly embedded in our law, and that any modernisation is for Parliament.

The case could have gone the other way. Read literally, Tehidy supported the tribunals, and the fiction is already detached from reality. But the CA’s answer is the more principled one. Stretching the fiction back before any use would cut it loose from acquiescence, its only foundation, and would undermine the protection Parliament gave charity land. 

Final words: clothing with legal rights and why the law matters

It would be easy to see this as a technical win for one neighbour over another. But it is the law working as it should. Courts must, wherever they can, “clothe with legal right long continued and undisputed enjoyment” (Fry LJ in Phillips v Halliday), but only where that enjoyment was against someone who could have granted the right.

Nor can the answer always be pro development. Courts take property rights seriously, and that cuts both ways. Today’s development site is tomorrow’s completed asset, and the rules that protect a charity’s car park also protect the title, rights and value of what has been built. For investors, lenders and developers alike, a robust and predictable legal system is not red tape. It is what makes property in this jurisdiction worth investing in.