Rights of Light, Landlords and Tenants

RIGHTS OF LIGHT, LANDLORDS AND TENANTS

BY JONATHAN KARAS Q.C.

Case Study: Facts

1.  The facts are as follows:

(1)  A building (“the dominant tenement”) has the benefit of rights of light over adjoining land (“the servient tenement”). The freehold of the dominant tenement vests in D. The freehold of the servient tenement vests in S.

(2)  D has granted a lease of the dominant tenement to T for a term which exceeds 20 years. Under the terms of the lease T does not enjoy the benefit of the rights of light over the servient tenement and the benefit of rights of light is reserved to the landlord.

(3)  T has actually enjoyed the light received by the dominant tenement for a period of 20 years.

2.  The question is whether T has acquired enforceable rights of light by prescription over the servient tenement?

Introduction

3.  There is no particular magic in the phrase “right of light”. A “right of light” is an easement. In other words, it is a right enjoyed with a one parcel of land (the “dominant tenement”) over another parcel of land (the “servient tenement”). The dominant tenement carries with it the right to receive light in a lateral direction to an aperture in a building on it without interruption from the servient tenement.

Establishing a right to light

4.  Like other easements, rights to light can be acquired by express grant. More usually they are acquired by prescription. As with other easements, there are three sorts of prescription:

(1)  use since time immemorial i.e. since 1189;

(2)  “Lost Modern Grant” i.e. 20 years uninterrupted user of light (for any period) “as of right” (see generally Tehidy Minerals v Norman[1]);

(3)  prescription under the Prescription Act 1832 (“the 1832 Act”).

5.  The 1832 Act, however, deals with rights to light differently from other easements in a number of respects. In essence, to establish a prescriptive right under section 3 of the 1832 Act, it is necessary to establish the following:

(1)  access and use of light to a building;

(2)  “actually enjoyed therewith”;

(3)  for a full period of 20 years.

6.  Particular points to note are:

1. the right may be acquired by tenants;
2. the period of 20 years runs back from the commencement of the action: until the action is commenced, however, the right is inchoate;
3. the acquisition of a right will be defeated if there is an interruption for a year (section 4); but enjoyment for a period exceeding 19 years which is then obstructed can be protected if proceedings are brought after 20 years have run and before the obstruction has lasted one year;
4. the acquisition of the right can be defeated if there is consent or agreement in writing to the enjoyment[2].

7.  The first point is particularly important to note when considering the case study.

Analysis

Acquisition of rights: easements generally

8.  The basis of the doctrine of prescription is that if long enjoyment of a right is shown, the court will uphold the right by presuming that it has a lawful origin. In order to rely upon the doctrine, however, the user must be by or on behalf of the owner in fee simple against the owner in fee simple. “The whole theory of prescription at common law is against presuming any grant or covenant not to interrupt, by or with anyone except an owner in fee”[3]. Accordingly[4],

1. where the freehold dominant tenement is demised by D to T, T’s enjoyment of rights over S’s land enures for the benefit of D’s estate;
2. where the freehold dominant tenement is demised by D to T and T enjoys use over the servient land which is also owned by D, no easement is acquired for T’s enjoyment
3. where both the dominant and the servient land are subject to tenancies it is settled law that prescriptive title to an easement over the freehold land cannot be acquired;
4. in principle, where the servient land alone is subject to a tenancy, prescriptive rights cannot be acquired over that land since the freehold owner would not be able to grant such rights during the currency of the tenancy: this is so whether the doctrine of lost modern grant or the Prescription Act 1832 is relied on. This, however, is subject to an important qualification: in Pugh v Savage[5] as explained in Williams v Sandy Lane (Chester) Ltd [6] it was held that the following principles applicable to cases where the servient land is, or has been, subject to a tenancy.

“First, in a case where the grant of the tenancy of the servient land predates the user by or on behalf of the owner of the dominant land, it is necessary to ask whether, notwithstanding the tenancy, the freehold owner of the servient land could take steps to prevent user during the tenancy. The answer to that question is likely to turn on the terms of the tenancy.

Second, if (notwithstanding the tenancy) the owner of the servient land could take steps to prevent the user, it is necessary to ask whether (and, if so, when) the freehold owner had knowledge (actual or imputed) of that user by the owner of the dominant land. The fact that the freehold owner of the servient land was out of possession when the user began and throughout the term of the tenancy may well lead to the conclusion that knowledge of that user should not be imputed. However, if, on the facts, the owner of the servient land does have knowledge of the user and could (notwithstanding the tenancy) take steps to prevent that user, but does not do so, then (prima facie) acquiescence will be established.

Third, in a case where user of the servient land by the owner of the dominant land began before the grant of the tenancy, it is necessary to ask whether the freehold owner of the servient land had knowledge (actual or imputed) at or before the date of the grant. If so, it is likely to be immaterial whether the terms of the tenancy are such that the owner of the servient land could (or could not) take steps to prevent that user. That is because if (with knowledge of the user) the owner of the servient land grants a tenancy of that land on terms that put it out of its power to prevent that user, it can properly be said to have acquiesced in it.

Fourth, if the owner of the servient land did not have knowledge of the user at the date of the grant, the position is the same as it would be if the grant had predated the user. It is necessary to ask whether (notwithstanding the tenancy) the freehold owner can take steps to prevent the user; and, if so, whether (and if so when) the owner had knowledge of the user[7]”;

1. while a prescriptive easement must be claimed as appurtenant to the fee simple of the dominant tenement, it is sufficient in pleading a claim under the Prescription Act 1832 to claim it on the ground of an enjoyment as of right by the occupiers of such tenement: see Prescription Act 1832 s.5. Enjoyment by the tenant in possession of the dominant tenement, therefore, will enure for the benefit of the fee simple and be sufficient for the presumption of an absolute grant.

9.  In the context of rights to light, however, section 3 of the Prescription Act 1832 provides that the actual enjoyment of light to a “dwelling-house, workshop or other building” for 20 years without interruption shall make the right “absolute and indefeasible” unless enjoyed by written consent or agreement. This has been construed so that the general position described above does not apply:

1. a tenant can acquire a right to light enuring for the benefit of the tenancy against an adjoining land owner;[8]
2. a tenant can acquire such a right to light even against his own landlord;[9]
3. a tenant can acquire a right to light against another tenant of his own landlord[10];
4. where the easement is acquired against another tenant and the lease of the servient land expires first, the easement binds the landlord (and subsequent occupiers of the servient tenement)[11].

On the other hand, a landlord’s reservation in the lease of a right to rebuild the adjoining property may amount to a consent in writing which will defeat the claim.

10.  In RHJ Limited v FT Patten (Holdings) Ltd [12] the lease of an office block contained a provision excepting or reserving: "All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property." The lease also reserved to the landlord: "The full and free right to erect, build, re-build and or alter as they think fit at any time and from time to time any buildings or bays or projections to buildings on any land adjoining the demised property and/or on the opposite sides of the adjoining streets and access ways." Both Lewison J and the Court of Appeal held that the provisions of this lease had the effect of triggering the proviso to s.3 of the 1832 Act. Lewison J reviewed a long line of authorities concerning the effect of s.3 of the 1832 Act. At paragraph 34 he said this:

"The real distinction that the cases draw is, as it seems to me, between clauses that deal with the position as it exists at the date of the lease, and clauses that deal with what might happen in the future. Clauses of the first kind are effective only to prevent the creation of easements by express or implied grant; and do not prevent the subsequent acquisition of a right of light by prescription. Clauses of the second kind may prevent the acquisition of a right of light by prescription of what they authorise would interfere with light. If, on a fair reading of the clause they do, then it is not necessary, in my judgment, for the clause to use the word 'light'. Nor, in my judgement, is it necessary for the clause to provide that the enjoyment of light is 'permissive'. What is needed is that the clause makes it clear that the enjoyment of light is not absolute and indefeasible. The court must 'find out the substance of the contract': in other words it is a question of interpretation of the clause in question. Once the clause has been interpreted, that interpretation will have been 'expressly' agreed. A clause in a lease which authorises the landlord to build as he pleases is likely to satisfy the test."

In the Court of Appeal[13] Lloyd LJ gave the principal judgment with which Lawrence Collins and Mummery LJJ agreed. Lloyd LJ reviewed the authorities on s.3. At paragraph 44 Lloyd LJ stated, with reference to the last part of s.3:

"I consider that the phrase "expressly made or given for that purpose" can be satisfied by an express provision in the relevant document which, on its true construction according to normal principles, has the effect of rendering the enjoyment of light permissive or consensual, or capable of being terminated or interfered with by the adjoining owner, and is therefore inconsistent with the enjoyment becoming absolute and indefeasible after 20 years."

On the other hand, in the recent case of Salvage Wharf Limited-v-G&S Brough Limited [14] the Court of Appeal held that an agreement between a developer and a property owner whereby the property owner agreed not to enforce its right of light in relation to the proposed development did not amount to a consent or agreement under S.3 of the Prescription Act 1832. On a fair reading of the agreement, the property owner consented to a development that could cause some reduction in the amount of light entering its premises. It did not consent to a completely different development that would block all light

Application of Principles

11.  Applying these principles to the present case, if there has been actual enjoyment of light to the servient land for a period of 20 years without interruption, then T will acquire rights of light over the servient land unless it was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

12.  Such a consent or agreement may be contained in a lease: thus leases which authorise the grantor to build on his land have been construed as a consent or agreement to enjoy the light in the meantime: see e.g. Foster v Lyons & Co Ltd[15]. On the other hand:

1. a mere exception of the right to light in such a way as merely to negative the implication of a grant, will not be sufficient to amount to such a consent to future use;[16] and
2. in principle, even if a lessor reserved to itself the right to build upon adjoining land, this does not seem to me sufficient to amount to a licence or consent to enjoy light over servient land which is not owned by the lessor – the lessor has no power to consent or agree to such enjoyment.

On the facts of the case study, there is no suggestion of any other possible consent or agreement in writing upon which reliance can be placed. The tenant, therefore, would seem to have acquired rights of light.

© JONATHAN KARAS Q.C. 2009

6

[1] [1971] 2 QB 528 at 552

[2] Consents may be contained in conveyances and transfer. How they will be construed will depend upon the precise words used. See in particular Marlborough (West End) Limited v Wilks Head & Eve 1996, Lightman J. Issues may arise over the extent to which a consent can bind successors in title to the original parties.

3.  [3]See Wheaton v Maple & Co [1893] 3 Ch 48, 63 (lost modern grant).

4.  [4]See generally Kilgour v Gaddes [1904] 1 KB 457; Simmons v Dobson [1991] 1 WLR 720, 725

5.  [1970] 2 QB 373

6. 

[5]

7.  [6][2006] EWCA Civ 1738

[7] Per Chadwick LJ at para [24]

[8] Fear v Morgan [1906] 2 Ch 406; Morgan v Fear [1907] AC 425

[9] Ibid..

[10] Ibid..

[11] Ibid..

[12] [2007] EWHC 1665 (Ch); [2007] 4 All ER 744

[13] [2008] EWCA Civ 151; [2008] Ch 341

[14] [2009] EWCA Civ 21

[15] [1927] 1 Ch 219

[16] Mitchell v Cantrill (1887) 37 Ch D 56