Defining Long User: Lessons from Kingdom Hall Trust v Davies.

In this Newsflash episode, Lizzie Collin sits down with Richard Snape, Head of Legal Training at Davitt Jones Bould, to discuss the Upper Tribunal decision in Kingdom Hall Trust v Peter Robert Davies. They unpack the complexities of prescriptive easements, focusing on the requirement for a capable grantor and how charitable land status impacts the ability to claim easements.

Richard and Lizzie discuss:
• The background and legal fiction behind prescriptive easements and “lost modern grant”.
• How the Tribunal approached the concept of a capable grantor in the context of charitable land.
• The implications of the decision for landowners, developers, and practitioners dealing with historic land use and rights of way.

This case highlights the evolving interpretation of prescription law and offers key insights into managing rights over land with charitable or ecclesiastical ownership.

Other cases mentioned: 

• Hughes v Incumbent of the Benefice of Frampton-on-Severn and Others

Training & Free Webinars for Property Professionals:

Would you like to keep up to date with the latest in real estate law? Davitt Jones Bould offers legal training tailored to your organisation’s needs, delivered in person across the UK or remotely. We also run free monthly webinars through for surveyors, solicitors, and property professionals across sectors. To sign up or learn more, visit our events page here or email djb.events@djblaw.co.uk for information and booking.This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Training & Free Webinars for Property Professionals:

Would you like to keep up to date with the latest in real estate law? Davitt Jones Bould offers legal training tailored to your organisation’s needs, delivered in person across the UK or remotely. We also run free monthly webinars through for surveyors, solicitors, and property professionals across sectors. To sign up or learn more, visit our events page here or email djb.events@djblaw.co.uk for information and booking. 

This podcast is for informational purposes only and is not intended to provide legal or professional advice. No liability is accepted by Davitt Jones Bould for any reliance placed on its content.

Transcript

00:00:02 Lizzie
Hi, Richard.

00:00:03 Richard
Hello, Lizzie, how are you?

00:00:05 Lizzie
I'm very well thank you, all the better to be here to talk about a new case around prescriptive easements and this case, it was actually from the 29th of August from the Upper Tribunal. And the case is called Kingdom Hall Trust and Peter Robert Davies. And it looks at the need for having a capable Grand Tour and grantee.
Which you'll go into a bit more detail on for us, but could you start by refreshing our memories on prescriptive easements? What they're all about?

00:00:32 Richard
Yeah, well, it's a presumed grant as a prescriptive easement, a bit of a legal fiction.

00:00:38 Richard
That if you can show and the Dalton Angus, which is discussed in the current decision was the case that really 1981 really sort of highlighted the requirements and it depends on acquiescence by somebody in long user as of right without for secrecy or permission.

00:00:59 Richard
V-neck clam neck precario as they say, and it's going to be a user buyer on behalf of and against the fee simple owner. And the problem area is what this case was really about was that how do you decide what the long user is?

00:01:14 Richard
Because that's where it gets bizarre.

00:01:17 Richard
There are three ways of settling the use. The first, we won't bother too much about it's that user has been since time immemorial, and you know when time immemorial started, Lizzie.

00:01:29 Lizzie
No.

00:01:30 Richard
1189.

00:01:32 Lizzie
1189.

00:01:33 Richard
Yeah. Do you know why?

00:01:36 Lizzie
No. Do you tell us?

00:01:37 Richard
It was the date of the accession of Richard, the first to the Crown of England, and it was settled by the 1st Statute of Westminster of 1275, but that need not bother us. The other ways are under the Prescription Act, one of the worst drafted pieces of legislation.

00:01:55 Richard
Of all time until the Building Safety Act came along. But the 1832 Prescription Act in Section 2 says if you can show long user as of right, rights to light are different for the relevant period. After 20 years you can claim you can get a claimed easement by prescription. But after 40 years.

00:02:15 Richard
It becomes indefeasible, but it's got to be the 20 or 40 years next before some suitor action. The 20 or 40 years before you bring your claim.

00:02:26 Richard
And if there's an interruption for a year, then you lose the right.

00:02:31 Richard
You know, within sort of to claim by prescription, but there's another way. Lost modern Grant, which is, say, affection that if you can show 20 years.

00:02:42 Richard
Then the fiction is that you've been granting an easement in the past and you've lost the grant, and that's the kind of concept.

00:02:51 Richard
Do you remember we did a case on it? Years ago now.

00:02:55 Lizzie
Yes.

00:02:55 Richard
With a long name, Hughes.

00:02:58 Lizzie
Hughes, I can't remember the rest of it.

00:02:59 Richard
Hughes and Incumbent of the Benefice of Frampton-on-Severn and Others

00:03:08 Lizzie
That is it. We'll link it in the bottom of this so that people want to watch it.

00:03:11 Richard
Yeah. Easy, easy, easy to remember. And that's unlike the Prescription Act, where the 20 or 40 years has to be before you claim that can be at any time in the past. So they've got, you know, 20 years used in the past, hadn't used for four years this right away, but they could still, you know, claim wasn't actually discussed in this case, this particular case.

00:03:33 Richard
But there you go. But that's some of the background lost Modern Grant is a easier way of claiming if you like the prescription under the Prescription Act.

00:03:44 Lizzie
So can you tell us about this case in particular, then what's happening here?

00:03:49 Richard
As I say this is about that, but primarily about the need for a capable grantor, you know, the person who you're claiming the easement against, that the ability to grant it

00:03:57 Richard
It was the Kingdom Hall of Jehovah's Witnesses in Telford.

00:04:05 Richard
Is the Kingdom hall, and this was the land until 1958 was.

00:04:11 Richard
In common ownership, and if it's in common ownership, you can't claim prescriptive rights. You'll be claiming against yourself, but part of the land are being separated in 1958, and eventually it was called the Bungalow and eventually became known as.

00:04:30 Richard
Pleasington or Pleasington probably and and they were claiming, Davis was the current owner of Pleasington. He was claiming a prescriptive rights exercised by him and his predecessors across the passageway across a car park at the back.

00:04:51 Richard
Of Kingdom hall.

00:04:54 Richard
There is no evidence of any user which was accepted by the 1st Tier tribunal between 1958 and 1977. But between 1977 and 2021, when the dispute arose.

00:05:08 Richard
There was evidence of use so on on the face of it, you've got your 20 or 40 years user, but there was a problem and that was that in 1967 the land became charitable land.

00:05:25 Richard
This is in Kingdom Hall, all its predecessors to be precise, to get over.

00:05:31 Richard
If it's charitable land, you can't dispose of it. It's at the time it would have been section 29 of the Charities Act of 1960, but it's in the 2011 Charities Act now, sections 117 to 123. If you're interested and you have to get the consent to either a court order or the consent of the.

00:05:51 Richard
Charity commissioners or the charity Commissioners it is now, and there was no consent. So what's the status there? You know you can't on the face of it, between 1967 and 2021 claim of prescriptive easement.

00:06:05 Richard
There's Been a case, for instance, which was quoted of Oakley and Boston in 1976, Court of Appeal case, where they basically said you can't presume consent of the Charity Commissioners automatically. It was again, it was claiming an easement.

00:06:26 Richard
And they sort of quoted that this was actually ecclesiastical land.

00:06:29 Richard
And you have to get the consent of the ecclesiastical, ecclesiastical Commissioners if it's ecclesiastic land, leave land, rectorial land.

00:06:40 Richard
And they said that you can't infer that consent and they accepted the same for the charitable land here. There's quite a few cases that say the same thing.

00:06:48 Richard
But all the cases that deal with it are basically, there is no suggestion that the land had been used and the likes or there was a capable grant or before it became charitable land or before it became ecclesiastical land.

00:07:06 Richard
Which is the difference here.

00:07:08 Lizzie
And what was the decision?

00:07:10 Richard
The there seems to be remarkably little sort of clear evidence, you know? Still this this area, but they were quoting cases. Took me back magarian like wade law of real property which I studied meticulously when I was a student and also a couple of Law Commission papers.

00:07:30 Richard
And came to the conclusion, and as I mentioned, all the previous cases, there was no suggestion that you know, there was any kind of time period that there might have been a capable grantor.

00:07:42 Richard
But the the Tribunal and the Upper tribunal and accepted it decided that there could have been a grant to presume Grant doesn't have to be a grant. Obviously, between 1958, when the land was was divided in 1967, when it began charitable. So you can have two different time periods.

00:08:01 Richard
One to decide the length of time for the prescriptive right, and secondly quite separate time period.

00:08:09 Richard
Where there there was a capable grantor.

00:08:12 Richard
And so they got their rights. They also said going back to what we talked about previously, that you could claim under lost modern grant because at any time in the past you've got 20 years user. So that was the decision and it's quite important.

00:08:30 Lizzie
And are you going to tell us why? What's the consequence of this one?

00:08:33 Richard
It's always been accepted that you know, it's very difficult to claim scripted rights over things like charitable land.

00:08:41 Richard
I mean, there's there are other cases. There was a bikes to like called the Barker and Richardson in 1821, where it was Glebe land and they said again, you can't claim prescriptive rights, you have got to get the churches consent and lights. But it seems that you can have two separate time periods, one for the length of time for prescription.

00:09:01 Richard
And on for retiring before that, when it wasn't charitable land and it's there's, well, there's 167,000 charities in Britain. Would you like me to list them?

00:09:12 Lizzie
I don't think we've got time now.

00:09:15 Richard
And there's also provisions in relation to some university land which is subject to, you know, consents to dispose of statutory undertakers, ecclesiastical land. As we mentioned, there's various things playing fields, you've got school playing fields, you're going to get the Secretary of State consent to dispose and so  on.

00:09:36 Richard
So it's quite significant for a large larger number of areas. They are potentially subject to prescriptive rights.

00:09:45 Richard
There you are.

00:09:47 Lizzie
Well, thank you very much, Richard.

00:09:49 Richard
Thank you, Lizzie.