Can prescriptive rights exist where they could never be granted?
Author: Ben Baker, Chief Underwriting Officer
A noteworthy case, now potentially heading for the Court of Appeal caught my attention, not because it overturns established principles, at least not yet, but because it highlights how fragile some long-held assumptions around prescriptive rights can be when/if tested against particular facts.
The case is The Kingdom Hall Trust v Davies [2025] UKUT 294 (LC), an Upper Tribunal decision from last summer, for which permission to appeal has been granted. While the final position remains unsolved, the reasoning adopted so far raises points of interest from a legal perspective, but also in the context of transactional risk and title underwriting.
At its core, the dispute concerns whether prescriptive rights can arise over land where the owner could not, at the relevant time, have validly granted those rights in the first place. In this instance, the servient land was owned by a charity, meaning that any grant of rights required the appropriate consent of the Charity Commission, which had not been obtained.
On that basis, a claim under the Prescription Act was unavailable. Yet both the First-tier Tribunal and the Upper Tribunal upheld the existence of an easement by reference to the doctrine of lost modern grant.
Lost modern grant is not frequently encountered in practice and, in this context, its application is of particular interest. It proceeds on a legal fiction: that a valid grant of rights was made at some point in the past, with the documentary evidence of that grant having since been lost. The right itself is not treated as lost. Although the doctrine relies on long use, that use does not need to have continued up to the point of challenge and may, in some cases, have been discontinued.
In this case, the Tribunal concluded that the relevant grant could, and therefore should, be presumed to have occurred before the land came into charitable ownership. On that basis, a valid grant was treated as having existed, even though, at the time the dispute arose, such a grant could not lawfully have been made.
Whether the Court of Appeal will endorse that reasoning remains to be seen. It may be endorsed, refined or rejected. At the very least, the case illustrates the extent to which outcomes in this area can depend on the interaction between historic ownership, land status and statutory constraints.
From a legal perspective, based on title records and documentary evidence, this kind of uncertainty is difficult to resolve conclusively. Where land is acquired with the benefit of access over charity-owned land, there may be no reliable means of establishing whether those rights were properly authorised at the time they arose.
Registered titles may offer comfort where rights are clearly recorded, but matters become far less certain where land is unregistered, historic ownership is opaque, or rights have evolved through long use rather than formal grant.
These are the sorts of issues that lawyers understandably flag to their clients but identifying risk does not always come with a clear or proportionate route to resolution. Investigations may be inconclusive, statutory remedies may be slow or unavailable and the cost of pursuing absolute certainty can outweigh the commercial value of the transaction itself.
This is where title insurance can play a legitimate role, not as a substitute for legal advice, but as a response to residual uncertainty. Where rights cannot be conclusively proved or disproved, a policy can protect against the financial consequences of future challenges. This would protect against the cost of defending enforcement, diminution of value if access is lost, or the expense of negotiating replacement rights.
The significance of this case lies less in its eventual outcome and more in what it illustrates about the evolving nature of property law. New interpretations emerge, old doctrines are tested in new contexts, and assumptions that once felt settled are revisited and questioned.
As underwriters and advisors, that is something that we have to remain alert to. Legal certainty is not always achievable, and waiting for it can mean that transactions fail unnecessarily. Used thoughtfully, title insurance can allow deals to proceed while acknowledging that some questions cannot yet be answered with confidence.
The Court of Appeal’s decision will be one to watch. Regardless of the outcome, the case is certainly a timely reminder that prescriptive rights, particularly where charity land is involved, are rarely as straightforward as they first appear, and that uncertainty itself is often the risk that needs managing most carefully.
