Rights to light may be acquired by grant or by prescription. In the case of a lease, the rights are granted at the date of the lease, whether the grant is express or implied. However, a tenant’s rights to light may also arise merely because the tenant enjoys access to light after the date upon which the lease was granted. This is because, if a building enjoys uninterrupted access to light for 20 years, section 3 of the Prescription Act 1832 provides that the right to light becomes absolute unless access to light was enjoyed by a consent or agreement “expressly made or given for that purpose by deed or writing”.
In RHJ Ltd v FT Patten (Holdings) Ltd [2007] EWHC 1655 (Ch); [2007] PLSCS 155, the High Court was asked to rule on the effect of different, but connected, provisions in a lease. The first negated the grant of any easements to the tenant unless they were expressly granted by the lease. The second reserved rights of light for adjoining buildings owned by the landlord. The third reserved rights to build on any adjoining land, but did not specifically sanction any interruption to the quality or quantity of light enjoyed by the tenant’s building. Did these provisions constitute an agreement or consent that prevented the tenant’s rights to light from becoming absolute?
The judge reviewed the authorities and ruled that it was important to distinguish between agreements dealing with the position as it existed as at the date of the grant of a lease and agreements dealing with what might happen in the future. The tenant’s lease dealt with existing and future rights, but did not specifically mention rights to light in the context of future development. The tenant had seized on the omission, arguing that the clause precluded claims for noise, dust and vibration – but that it should also have expressly referred to rights of light in order to satisfy the requirements of section 3.
The judge decided that the omission was not fatal. Whether a document constitutes an agreement or consent is a question of construction. Once a document has been interpreted, that interpretation is “expressly” agreed for the purposes of section 3. The requirement for consent envisages permissive rights to light, but the requirement for an agreement does not. The lease made it clear that the tenant did not have absolute rights to light because it had authorised the landlord to build as it pleased, and an agreement that provides that rights to light are not absolute will preclude the application of section 3.
The decision confirms that a reference to interference with rights to light in the context of rights to future development may be good practice but is not essential. The courts will consider the substance of the contract, and clauses that are designed to authorise future building work will prevent the acquisition of rights to light if they authorise development that would interfere with access to light in the adjoining buildings.
Allyson Colby is a property law consultant
