Pressure on space in our cities has made rights of light increasingly important. Easements of light are unusual. A landowner claiming a prescriptive right to light needs only to prove that the windows in its building have enjoyed uninterrupted access to light for 20 years. The right to light will then become absolute. However, landowners can prevent their neighbours from acquiring prescriptive rights of light by proving that they have enjoyed access to light under an agreement or consent “expressly made or given for that purpose by deed or writing”: section 3 of the Prescription Act 1832.
RHJ Ltd v FT Patten (Holdings) Ltd [2008] EWCA Civ 151; [2008] PLSCS 62 concerned the effect of a lease provision that reserved to the landlord the “full and free” right to build on adjoining land, without expressly reserving the right to interrupt the light reaching the tenant’s building. The tenant argued that the reservation had not prevented it from acquiring prescriptive rights of light over the adjoining land because rights of light were not expressly mentioned.
The Court of Appeal rejected the tenant’s arguments. It held that if what the clause authorises would interfere with access to light, it is not necessary for the clause to contain the word “light”. Nor is it necessary for the clause to provide that enjoyment of light is “permissive”. It is merely a question of interpreting the clause to see whether it renders the enjoyment of light permissive or consensual or capable of being terminated or interfered with by the adjoining owner. The court also dismissed the tenant’s arguments that the lease contained express references to rights of light in other places, from which the tenant inferred that the landlord was not concerned with rights of light in the clause reserving rights to build. Their lordships ruled that this would make nonsense of the clause.
Conveyancers can learn much from authorities cited in this case. These underline the importance of distinguishing between different rights of light provisions in leases and transfers and highlight the need to consider whether a provision deals with the rights of the parties at the date of the disposition or with what might happen in the future. Provisions that deal with the position at the date of a disposition will negate the implication of the grant of a right to light under the doctrine of non-derogation from grant, but will not prevent the future acquisition of prescriptive rights. However, provisions authorising a landowner to carry out future works and to build as it pleases will.
When investigating title to property, it is also important to ascertain which areas of land benefit from such provisions and to consider whether subsequent landowners will benefit from them. The decision in City Inn (Jersey) Ltd v Ten Trinity Square Ltd [2008] EWCA Civ 156; [2008] 10 EG 167 (CS) reminds us that the provisions may be personal to a named landowner and that conveyancers should not assume that the benefit will pass to their clients when they buy or rent a building.
Allyson Colby is a property law consultant
