The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct to submit that any significant alteration in a window during the running of the 20 year period, means that the period must start again with the new windows in order to build up an easement of light in relation to that altered window.’ However, the Claimants had proved that they were entitled to an easement or easements of light with respect to the windows on the northeast facade, because the effect of the 1967 Conveyance was to engage the proviso to section 3 of the 1832 Act in a manner which extended to the Corporation’s successors in title.
Judges:
William Trower QC J
Citations:
[2012] EWHC 1594 (Ch), [2012] 25 EG 89
Links:
Statutes:
Prescription Act 1832, Rights of Light Act 1959 2(3)(b)
Jurisdiction:
England and Wales
Citing:
Cited – Willoughby v Eckstein ChD 1936
The parties were tenants of the same landlord, the Grosvenor Estate in adjoining premises at Balfour Mews in Westminster. The plaintiff claimed for an infringement of his right of light from ancient windows by his neighbour, and also that the height . .
Cited – Marlborough (West End) Ltd v Wilks Head and Eve ChD 20-Dec-1996
A dispute between neighbours was settled by a deed with the following clause: ‘IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises . .
Cited – RHJ Ltd v FT Patten (Holdings) Ltd and Another CA 12-Mar-2008
A right to light is an unusual form of easement in the sense that it exists only with regard to the access to light to defined apertures in a building (as opposed to the dominant land generally) and its acquisition depends on actual enjoyment, not . .
Cited – Frewen v Philipps CEC 1861
The plaintiff and defendant occupied houses adjoining each other as tenants under leases both of which were granted by the same lessor on the same day, viz the 18th of December, 1788, and both expiring at the same time. The defendant by building on . .
Cited – Scott v Pape CA 1886
Once an easement has been abandoned, it is abandoned forever. The court considered the issue as regards rights of light, and alterations made after the right had been indefeasibly acquired.
Cotton LJ said: ‘In my opinion the question to be . .
Cited – MacKenzie v Childers ChD 1890
A deed contained a recital that it was intended to be a part of all future contracts for sale of the plots that the several purchasers should execute the deed, and be bound by the stipulations contained in it; and thereby it was expressed that each . .
Cited – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .
Cited – Morgan v Fear HL 1907
Two adjoining tenants held of the same landlord. One enjoyed access and use of light over the adjoing tenanted premises for a period in excess of twenty years and without interruption.
Held: An absolute right of light was acquired as against . .
Cited – Andrews v Waite 1907
Neville J concluded that, even quite substantial alterations in the fenestration during the prescription period were not of themselves material; what mattered was that the light enjoyed should be the same light as that which was enjoyed throughout . .
Cited – News of the World Limited v Allen Fairhead and Sons Limited ChD 1931
The court was asked as to the effect of changes in the fenestration on acquired rights of light.
Held: Whether there is a sufficient coincidence to justify the retention of an enjoyment of the same light will depend on whether the new facade . .
Cited – Rhone and Another v Stephens CA 17-Mar-1993
A house had been divided. The original owner covenanted to repair the roof over the part which had been sold off. A later purchaser of the that part sought to enforce the covenant against a subsequent owner of the main house. At first instance the . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Rhone and Another v Stephens HL 17-Mar-1994
A house was divided, the house being retained along with the roof over the cottage, and giving a covenant to repair the roof on behalf of the owner of the house. The cottage owner sought to enforce the covenant against a later owner of the house. . .
Cited – Morrells of Oxford Ltd v Oxford United Football Club Ltd and Others CA 21-Jul-2000
A covenant on the sale of land for a public house provided that the vendor should not permit the building of licensed premises within half a mile.
Held: The covenant operated personally only. The covenants which might be implied by the section . .
Cited – Churchill v Temple and Others ChD 22-Oct-2010
Application for declarations relating to the enforceability, meaning and effect of a restrictive covenant.
Held: The court stressed the dangers of allowing an overly commercial construction to override the clear language of the instrument. . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 01 July 2022; Ref: scu.463797