Kingdom Hall Trust v Davies: Court of Appeal curbs lost modern grant doctrine

The Court of Appeal has held that a prescriptive right of way cannot be established by presuming a lost modern grant from before the use began, where the land was held by a charity, and so lacked a competent grantor, throughout the entire period of use. In The Kingdom Hall Trust v Davies [2026] EWCA Civ 1377, the court unanimously allowed the trust's appeal from the Upper Tribunal (Lands Chamber).

A grant presumed before the use began

Mr Davies claimed pedestrian and vehicular rights over the car park of a Kingdom Hall of Jehovah's Witnesses, for the benefit of a neighbouring house. The properties were in common ownership until 1958. In 1967 the hall site was conveyed to trustees to be held on charitable trusts, and it has been so held ever since.

The First-tier Tribunal found open use as of right from 1977 to 2021. It was common ground that from 1967 the hall's owners could not have granted an easement without a court order or Charity Commission consent, and no party argued that a lost order or consent should be presumed. The tribunals nonetheless presumed a grant made between 1958 and 1967, about a decade before the use began, when the land was not yet charity land.

That approach rested on Tehidy Minerals Ltd v Norman [1971] 2 QB 528. The Upper Tribunal treated Buckley LJ's formulation there as the definitive statement of the doctrine and concluded that the fictional grant need not coincide with the start of use.

Why Tehidy was read down

Lewison LJ, giving the lead judgement, disagreed. Reviewing authority from Daniel v North (1809) to Oakley v Boston [1976] QB 270, he found the cases consistently looked to the servient owner's capacity during the period of use. Acquiescence lies at the root of prescription, and an owner can acquiesce only in what he knows of and could stop.

On its facts, the grants presumed in Tehidy fell at the beginning of or during the use. The wider language was therefore unnecessary to the decision and obiter. It was also unsupported by earlier authority, inconsistent with Roberts v James (1903), which was not cited in Tehidy, and at odds with the principle on which the doctrine rests. Two pleading cases relied on by the Upper Tribunal in fact pointed the other way.

Lewison LJ described lost modern grant as a retrospective exercise that justifies the continuation of long use, not a means of rewriting history. If there was no competent grantor during the whole period of use, no grant can be presumed. As there had been no use against the owners before the land became charity land, nothing founded a presumption at that earlier date.

Questions left open

The appellant also advanced a broader argument, that use against an incompetent grantor simply drops out of account. Lewison LJ was not convinced. Where use begins against a competent grantor and continues against an incompetent one, he saw no theoretical objection to a presumed grant before the incompetent grantor arrived. He found that hard to reconcile with Cross v Lewis (1824) and Pugh v Savage [1970] 2 QB 373, however, and left the point for a case in which it matters.

Males LJ acknowledged that it seemed harsh for a right of way used openly for almost half a century to be found not to exist. He characterised lost modern grant, and its competent grantor qualification, as historical anomalies that remain firmly embedded in the law. Any modernisation, he said, must be for Parliament. Miles LJ agreed with Lewison LJ.