Plaintiff purchasing and redeveloping property – Owners of nearby property claiming redevelopment interfering with easement of light – Plaintiff claiming defendant surveyors failing in duty to advise – Preliminary issue whether easement existed – Whether deed made over twenty years previously preventing easement being acquired by prescription or doctrine of lost modern grant – Judgment for the defendant
Judgment delivered December 20 1996.
In 1911 a property in Ramillies Street, London W1 (the Ramillies property) was the subject of a lease for a term of 80 years to developers (the building owners) who commenced the development of the property. The freeholders and lessee of a property in Marlborough Street (the Marlborough property) claimed that the development of the Ramillies property interfered with an easement of light enjoyed by the Marlborough property. In resolution of the dispute the freeholders and lessee of the Marlborough property and the building owners entered into a deed. By clause 3 of the deed the building owners agreed that (1) no right or easement of light or air existed (2) no right or easement should at any future time be acquired by them or any person deriving title through or under them in respect of the windows in the new building erected on the Ramillies property overlooking the Marlborough property, and that (3) the lessee and the freeholders should have the right to intercept light and air coming to the said windows by building on the Marlborough property.
Prior to 1947 the freehold and leasehold interest in the Ramillies property had been sold. In 1990 the plaintiff purchased the Marlborough property and on starting its redevelopment became involved in a dispute with the current owners of the Ramillies property regarding the existence of an easement of light in favour of the Ramillies property. The plaintiff issued proceedings against their former surveyors and alleged that they had been negligent in failing to advise the plaintiff that the Marlborough property was subject to an easement. It was common ground that the Ramillies property had enjoyed access of light over the Marlborough property for over 20 years and that, subject to the effect of the deed, it would have acquired such right of light. The hearing of a preliminary issue was ordered to determine whether clause 3 of the deed amounted to ‘consent or agreement’ which precluded the acquisition of an easement by prescription either under section 3 of the Prescription Act 1832 or under the doctrine of lost modern grant.
Held Judgment for the defendant on the preliminary issue
1. Clause 3 clearly manifested the intention that the lessee and the freeholders were to be free at any time to redevelop the Marlborough property with no constraint imposed. There was a clear implication that the enjoyment of the access of light until redevelopment took place would not give rise to an easement after the lapse of any time.
2. There was no distinction between an agreement entered into by a lessee in occupation and an agreement made by a freeholder for the purposes of section 3 of the Act. The building owner, as a lessee, had entered into a written agreement that his enjoyment of the access of light would thereafter be precarious and therefore incapable of giving rise by prescription to any easement. Accordingly the original freeholder and subsequent freeholders were bound by the deed which prevented an easement being acquired by prescription.
3. Clause 3 rendered the access of light precarious in that the Ramillies property only enjoyed the access of light by licence over the Marlborough property. Therefore no period had run for the purpose of the doctrine of lost modern grant and accordingly the Ramillies property had not acquired an easement of light.
Michael Barnes QC (instructed by DJ Freeman) appeared for the plaintiff; Terence Etherton QC and Charles Turnbull (instructed by Berrymans) appeared for the defendant.
