Long use is not always enough: Court of Appeal rules in favour of charity

On 2 November 2026 the Court of Appeal, in The Kingdom Hall Trust v Davies [2026] EWCA Civ 1377, ruled that a neighbour had not acquired a right of way over charity land by long use, because the use only began after the land became charity property. The court refused to presume a grant from some earlier date, before the use began.

In this case, a neighbouring owner and his predecessors had used a route across a car park openly for more than 40 years. Whilst the car park was charity land, no easement could be granted without a court order or Charity Commission consent. Therefore, there was no competent grantor during the 40 year use so the claim for a prescriptive right of way based on the legal fiction known as the “lost modern grant” failed.

How the law of “prescription” works

Lost modern grant is one of three methods by which a right can be acquired by long use in England and Wales. The others are use since “time immemorial”, which in law means since 1189, and a claim under the Prescription Act 1832.

The lost modern grant method is the most common as the other two routes have limitations. A “time immemorial” claim fails if the right cannot have existed since 1189, so it can never support a right to drive across land, as there were no cars then. A claim under the 1832 Act needs the 20 years’ use to run up to the start of court proceedings, so it will fail if the use has stopped. The lost modern grant principle can potentially apply whenever 20 years’ use has taken place, even if that use ended long ago.

Whichever route is relied on, the use must be without force, without secrecy and without permission. In simple terms, the person using the land must behave as if they are entitled to do so, openly enough that the owner has a fair chance to object.

What does “without force, without secrecy and without permission” mean in practice?

• Force – A neighbour who keeps driving across a field after the owner has put up a clear “Private – no access” sign is using it by force, even if no gate is broken.
• Secrecy – Only crossing at night when the owner is away is using it in secret.
• Permission – Simply putting up with use, without objecting, is not permission but if the owner once told the neighbour “you’re welcome to use the track”, the use is with permission.
• The use must also be continuous, but that does not mean constant. Regular use, such as once a week in the case of a right of way, will often be enough, depending on the context.

Practical implications of the Court of Appeal’s decision

For charities and some other landowners, this ruling may provide a useful defence if a neighbour claims a right to cross, park on or run drains through their land.

If you are a buyer, tenant or lender relying on an undocumented right of way or other unwritten easement, ask your solicitor to cross reference the ownership history of the servient land with the dates during which the right has been exercised. A formal deed of grant or title insurance may be needed.

As Juliet Rayner, head of commercial property at Mackrell LLP said: “This decision provides welcome clarification of a complex area of the law but an important question remains unanswered: what happens if a neighbour starts exercising a right of way before the land is owned by a charity but, by the time the 20 years is up, the land belongs to a charity?”

If you would like advice on how any of this may affect your property interests, please contact our Head of Commercial Property by calling 020 7240 0521 or emailing juliet.rayner@mackrell.com.