Foster v Lyons and Co: 1927

The lease contained a reservation which would allow the freeholder to build upon his neighbouring land whether or not it obstructed any rights of light in the demised premises.
Held: The reservation was effective to prevent a right of being acquired by the tenant by prescription.
Eve J said: ‘The question is whether the words I have just read operate as an agreement within the section or were only meant to negative the implied right which the lessee would otherwise have had of insisting that the lessor should not derogate from his own grant by building on the adjoining land – in other words, does the case fall within the decision of Hayes v King or that in Mitchell v Cantrill? It cannot be disputed that if the words in question had not been inserted, the lessee by virtue of the lessor’s implied covenant not to derogate from his grant, would have been entitled to the continued access over the lessor’s land of the light actually enjoyed at the date of the demise, and that by the uninterrupted enjoyment thereof for the statutory period he could have acquired an absolute right under the Act to the access of that light. As the lease contains a covenant by the lessee not to alter the elevation or the structure of the demised premises without the written consent of the lessor, the only windows in the contemplation of the parties to which reservation was directed must have been those in existence at the date of the demise. Whether the right to which the lessor lays claim by virtue of the qualifying words can really be described as a reservation, I very much doubt, but the matter cannot be disposed of by a criticism of this nature. One must find out the substance of the contract and in my opinion the words must be construed as a grant by the lessee to the lessor of the full right to build on his adjoining land notwithstanding the result of injury to the light of the demised premises.’


Eve J


[1927] 1 Ch 219, 96 LJ Ch 79


Prescription Act 1832


England and Wales

Cited by:

CitedMidtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any . .
CitedParagon Finance plc v City of London Real Property Co Ltd ChD 16-Jul-2001
The claimants were underlessees of an office building. The offices had enjoyed a right of light for over a hundred years, and the freehold had acquired an easement of light by lost modern grant. The roadway having been closed, the defendant head . .
Lists of cited by and citing cases may be incomplete.


Updated: 13 May 2022; Ref: scu.222584