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 enjoyment as of right. The agreement referred to in the proviso to section 3 is any agreement the function of which is to prevent the enjoyment of light from being deemed to be absolute and indefeasible within the meaning of section 3.
Lloyd LJ discussed the last part of section 3: ‘I consider that the phrase ‘expressly made or given for that purpose’ can be satisfied by an express provision in the relevant document which, on its true construction according to normal principles, has the effect of rendering the enjoyment of light permissive or consensual, or capable of being terminated or interfered with by the adjoining owner, and is therefore inconsistent with the enjoyment becoming absolute and indefeasible after 20 years.’ The document which is said to trigger the proviso to s.3 must be construed in context and having regard to the surrounding circumstances.
Judges:
Lloyd, Lawrence Collins, Mummery LJJ
Citations:
[2008] EWCA Civ 151, [2008] Ch 341, [2008] L and TR 18, [2008] 11 EG 93, [2008] NPC 29, [2008] 2 EGLR 11, [2008] 2 WLR 1096
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – RHJ Ltd v FT Patten (Holdings) Ltd and Another ChD 13-Jul-2007
The court was asked whether the grant of a lease including a clause reserving: ‘All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property.’ . .
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 by:
Cited – Salvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
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 . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 14 July 2022; Ref: scu.266159