In an
increasingly overcrowded island rights to light are of considerable practical
importance. Furthermore, given that under English law there is no right to
privacy, rights to light often offer the only private law route by which
permanent intrusions on adjoining land can be challenged.
It is unusual
to encounter situations in which rights to light have been positively
conferred, although it is common to find them positively excluded when a
landowner sells or leases part of his land. This is because such rights can
impede the development of neighbouring property; while it is probably true to
say that the planning system eliminates many claims for infringements of light,
it is equally clear that buildings for which planning permission has been
obtained can still obstruct a neighbour’s private rights.
In practice
virtually all rights to light arise out of long use or prescription. Such
claims are invariably based on section 3 of the Prescription Act 1832. This
provides: ‘When the access and use of light to and for any dwelling house . . .
or other building shall have been actually enjoyed therewith for the full
period of twenty years without interruption the right thereto shall be deemed
absolute and indefeasible . . . .’ The
20-year period is that immediately before the commencement of proceedings and
‘no act or other matter shall be deemed to be an interruption . . . unless the
same shall have been or shall be submitted to or acquiesced in for one year
after the person interrupted shall have had or shall have notice thereof . .
.’.
This means
that once light from neighbouring land has actually been enjoyed through a
particular window for a period of 20 years the owner of that building has a
potential right to light. If the neighbouring owner then builds or otherwise
obstructs that light so that it is reduced to a level which amounts in law to
an infringement, the dominant owner can commence proceedings to protect his
right. However, if he submits to or acquiesces in the interruption to his light
for a period of one year his claim under the Act will be defeated. The
application of the rules on interruptions has been the subject of a recent
Court of Appeal decision.
Dance v Triplow [1992] 1 EGLR 190 has many of the sad features of
disputes between neighbours. The plaintiff owns a bungalow in East Sussex and
the basis of his complaint was that the defendants, who own the neighbouring
property, had, in 1980, constructed an extension to their house which
interfered with the light flowing into his spare bedroom. The trial judge found
that there was an interference, a finding which was not disputed. The question
for the Court of Appeal was whether the light had actually been enjoyed for the
relevant 20-year period without any interruption, as defined by the Act.
The county
court summons had been issued on August 9 1984, so the relevant 20-year period
was that terminating on that date. The bungalow had been built in the 1930s and
the window in question had clearly enjoyed a flow of light until the Triplows’
extension was up to roof height. This occurred in November 1980, so there had
been an actual interruption to the light which exceeded one year unless it
could be shown that this had not been submitted to or acquiesced in by
Mr Dance between November 1980 and August 1984 when proceedings were commenced.
The county court judge had decided that he had not submitted or acquiesced in
the obstruction and awarded him nearly £3,500 in damages.
The Court of
Appeal took a different view. Pointing out that previous authority means that
where an obstruction of light has actually lasted for more than one year (as in
this case) the burden of proof is on the plaintiff to show that he has not
acquiesced or submitted to it, the court went on to consider what, in law, is
meant by submission or acquiescence. Glidewell LJ said that, in the light of
the decision in Glover v Coleman (1874) LR 10 CP 108, ‘a person
acquiesce[s] where he is eventually satisfied to submit to the interruption.
Submission occurs when the plaintiff is not content to submit, but does not
make his opposition . . . apparent directly’. However, it is also clear from Davies
v Du Paver [1953] 1 QB 184 that, once a direct and vigorous protest to
the defendant has been made, it is possible for more than a year to elapse
before the commencement of proceedings. Accordingly, Mr Dance had to show that
he was not willing to accept the extension, and that he had made his
opposition sufficiently clear to the Triplows that the lapse of time before the
commencement of proceedings was not fatal.
Having
examined the evidence the court was not satisfied that this was the case. The
evidence showed that once Mr Dance had appreciated the size and effect of the
extension, in November 1980, he had made a series of complaints to the
Triplows. However, it was not at all clear that these related to the
obstruction of light; some were related to other aspects of the building,
others were unconnected and were simply symptomatic of the deteriorating
relationship between the parties. Once the matter was with Mr Dance’s solicitor
(from February 1982) there were no direct complaints to the defendants
concerning the right to light until the issue of proceedings in August 1984.
The Court of Appeal he had no doubt that Mr Dance had not proved that he had not
submitted to the interruption.
The moral of
this tale is clear. Once a potential right to light has actually been
obstructed, the claimant must protest vigorously to the perpetrator. Any
professional advisers must make clear to the defendant that the obstruction is
not in way being tolerated and, if matters drag on, this view must be repeated.
It is desirable that proceedings should also be commenced within a year of the
obstruction, but, if this is not possible, a firm and direct stance should be
sufficient to prove that there has been no acquiescence or submission.
tenancies
The Court of
Appeal has recently had to consider what legal formalities apply to the
assignment of a tenancy where the tenancy itself does not have to comply with
any formal requirements. While the outcome of the case was merely to confirm
what was thought to be the position, it is worth drawing to readers’ attention
since the court expressed considerable sympathy for the defendant who, as a
result, lost her home.
The facts of Crago
v Julian [1992] 1 EGLR 84 are all too familiar. The defendant, Mrs
Julian, had lived at the subject premises with her husband from the date of
their marriage in 1966. The flat was held on a weekly tenancy in the husband’s
name. In 1982 the couple divorced and in those proceedings Mr Julian gave an
undertaking to do all that was necessary to transfer the tenancy into his
ex-wife’s name. Unfortunately, as things turned out, nothing further was done
because both parties believed that the undertaking achieved a transfer of the
tenancy.
Mrs Julian
stayed on in the flat, paying the rent and dealing with the managing agents.
She spent considerable sums of money on the flat, believing herself to be the
protected tenant. New rent books were issued in 1983 and 1986, both of which
named Mr Julian as the tenant. It was in 1987, after experiencing difficulty in
obtaining housing benefit, that Mrs Julian wrote to the managing agents asking
them to change the name on the rent book. The agents refused this request. This
was the first they knew of the Julians’ divorce; they refused to accept any
further rent and served a notice to quit on Mr Julian. Since he was no longer
in residence he could not claim the protection of the Rent Act and a possession
order against Mrs Julian was granted by the county court, against which she was
now appealing.
The sole
issue before the Court of Appeal was whether the tenancy had been effectively
assigned to Mrs Julian. It has always been accepted that, in order for any
tenancy to be assigned at law (an equitable assignment would not have been
enough in the present case), a deed must be used; it was this principle which
counsel for Mrs Julian was seeking to challenge. The Court of Appeal looked
carefully at the interaction of sections 52, 53 and 54 of the Law of Property
Act 1925, the provisions governing the formalities required for the creation
and transfer of interests in land. Starting with section 53, Sir Donald
Nicholls V-C pointed out that the section draws a clear distinction between the
rules governing the creation of interests and those applying to the disposal of
interests. While section 53 requires all disposals to be in writing, it allows
for the creation of certain interests without any formality at all; the latter
are provided for in section 54(2) and include leases at a market rent for a
term not exceeding three years. As his lordship said, however curious this
distinction, the statutory language was clear and, given that there had been no
assignment in writing here, this was sufficient to dispose of the case.
However, he said that the added effect of section 52, the wording of which must
be taken to preserve the same distinction as was found in section 53, was that
any assignment had to be by deed to be effective at law.
Thus, the
defendant lost her home through ignorance of a legal rule. Those advising
couples in the position of the Julians must make it clear to their clients that
statutory protection for the spouse who remains in occupation, but who is not
the named tenant, is sustained only while the marriage lasts. The divorce court
can and will order the transfer of the tenancy, but this must be properly and
formally assigned.