Consensual Rights to Light and Successors in Title 3 Comments

Consensual Rights to Light and Successors in Title

Proposition:   Where, for the purposes of s.3 of the Prescription Act 1832, a right to light is enjoyed by the dominant tenement as a result of a consent or agreement in writing made or given by the owner of the servient tenement, it is likely that, in the majority of cases, a successor in title to the dominant tenement will continue to enjoy the benefit of the consent or agreement, and that a successor in title to the servient tenement will continue to be bound by it.

The first point to be made is that it remains possible to acquire a right to light by common law prescription or under the doctrine of lost modern grant.  This post is solely concerned with rights to light created by a consent or agreement under s.3 of the 1932 Act which reads as follows:-

“3.        When the access and use of light to and for any dwelling-house, workshop, 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, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same is enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing”.

The italics are of course mine.

The next general point which cannot be too heavily stressed is that the position of a successor in title to either the servient or the dominant tenement is primarily a question of construction of the words of the grant/ consent or agreement under which the right is created.

conveyanceI have no doubt there are many practitioners who would take the proposition above as read, but it appears that the question is not without doubt, as is demonstrated by the judgement in the case of CGIS City Plaza Shares 1 Limited and Another V Britel Fund Trustees Limited [2012] EWHC 1594 (Ch) and the commentary in the latest (19th) Edition of Gale on Easements (Sweet & Maxwell 2012) at paragraph 4 – 32/4

The majority of rights to light tend to be created either:-

a)    on the sale off by a land owner of part of his holding (when a right to build on the retained land, notwithstanding any interference with the buyer’s building, can be reserved, and/or or a similar right granted entitling the buyer to build to any height notwithstanding any interference with the light to the seller’s building; or

b)    when a development is proposed which will infringe the right to light to a neighbouring building and a right is granted by the neighbouring owner (usually by deed) which, again, can (and usually is) made by allowing either party to build either within a defined envelope or in any way at all, notwithstanding the extent of interference of the supply of light to the other’s building.

Going back to the question of construction, I believe that in the vast majority of cases there is not going to be an issue.  If a right granted is expressly made personal to the grantee then, by definition, there is no issue; a successor in title will not be benefitted or bound.

However, I have never myself seen a right so limited, and it is hard to believe that any developer (and it will usually be a developer) would accept that a grant of light to enable the construction of a building should be personal; the effect would be to make the newly constructed building unsaleable and the development unfundable (as – assuming the interference with light was sufficiently serious – the owner of the servient tenement would be in a position to apply for an injunction requiring the developer’s successor in title to demolish the new dominant tenement in whole or in part).

SunlightConversely, where a right is granted on behalf of the servient owner and its successors in title and/or to the owner of the dominant tenement and its successors in title, there can again be no doubt.  In such a situation, the consent will continue in force and the owner of the dominant tenement will not be able subsequently to acquire a prescriptive right under s.3.

They may well however (as in CGIS where the facts were complex and the wording of the grant and reservation differed) be cases where it is not fully clear what was intended i.e. where there is no express extension to successors in title and the benefit or burden is not specifically expressed to be personal.  In my view, CIGS is a case which turned very much on its particular facts and cannot really be regarded as authority for or against my general proposition.

My own instinct is that unless (as in CIGS) there is conflicting wording which gives rise to a doubt, a court would take some persuading that the intention of the parties to a grant of consent was that the burden and benefit will be personal only; as pointed out above that situation could lead to some fairly drastic results which a court is not likely to conclude were within the contemplation of the parties at the time of the original grant.

In amplification, to simply the wording it is probably easier to take the relative positions of the dominant and servient owners separately;

The Dominant Tenement

1)    I believe, for the reasons already given, that it is unlikely that a change in the ownership of the dominant tenement would have the effect of terminating the original consent.  The distinguished authors of Gale (at paragraph 4-33), suggest that the consent might be treated as personal but that another possibility is that the continued use by the successor or other relevant person with an interest in the dominant tenement could support an inference that the original consent or agreement has been renewed.  The authors refer in paragraph 4-33A to the case of London Tara Hotel Limited V Kensington Close Hotel Limited [2011] EWCA Civ 1356 but I think the circumstances there were rather unusual; the case concerned a right of way rather than a right of light and the original grant was on a personal basis.

2)    What I find quite interesting is that the learned authors of Gale make no reference to s.62 of The Law of Property Act 1925 (which applies to a disposition of registered land by virtue of The Land Registration Act 1925 s.22(3)).  Subsections 1 and 2 read as follows (the emboldenment is mine):-

(1)     A  conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings erections, fixtures, commons, hedges, ditches, fences, ways, waters, water courses, , privileges, easements, rights, liberties and advantages whatsoever appertaining for reputed to appertain to the land, or any part thereof, or, at the time of the conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof

(2)       A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, , houses or other buildings conveyed, or any of them, or any part thereof, or, at the time of the conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, other buildings conveyed, or any of them, or of any part thereof.

Is there not a strong argument that the benefit of a consented right of light would pass on a conveyance by the dominant owner to a third party under one or other of the quoted subsections?  I can find no authority which suggests that the benefit of an easement (see below) does not pass merely because it is enjoyed by consent – were that the case (since most easements are consensual) s.62 would only apply to prescriptive rights, which is clearly not its intention.

The Servient Tenement

1)    Referring again to Gale, in paragraph 4-33A the learned authors refer to the general rule that a consent or agreement (which does not create an interest in land) will not bind the successor in title to the servient tenement.  The italics are again mine.  The case to which the authors refer is Ashburn Anstalt V Arnold  [1989] Ch.1.  However the authors also suggest that a right to interfere with light passing to the dominant tenement may be an interest in land and indeed an easement; I respectfully agree – I  would not doubt its status as an easement (nor do the learned authors of Rights to Light: The Modern Law (Jordans 2007) at paragraph 2.1.

2)    The authors of Gale (in paragraph 4-37) also suggest that, provided the right to build is not intended to be personal, it may be construed as a covenant by the grantors not to assert a prescriptive right to light so as to obstruct development, in which case it will be binding on a successor to the covenantor by virtue of s.79 of The Law of Property Act 1925; in other words, the grant could be construed as a negative covenant of a restrictive nature.

3)     This last suggestion appears to be supported by the judgement in CGIS.  Mr Michael Barnes QC, for the Claimant, characterised the right in that case as a restrictive covenant and the court appears to have accepted that argument, quoting a passage from Emmett & Farrand on Title (Volume 2 at paragraph 19.002):-

Sunlight“Every obligation which, on a proper construction of a deed, is imposed upon one of the parties thereto amounts to an express covenant by him to perform that obligation, provided the language shows an intention that there should be an agreement between the covenantor and the covenantee to do or not to do the particular thing referred to.”

The judge construed the clause in question (granting a right to build without committing a nuisance notwithstanding an interference with the light to the servient tenement) as not only granting a right but also containing a promise by the servient tenement that it would take no steps to assert that a prescriptive right to light might arise in favour of the identified land.  With the greatest of respect to the judge, I personally find that to be a rather strained construction (whilst I do not doubt that the word “covenant”” is not essential, there seems to me to be a fundamental difference between the grant of a right to do something and a promise not to do something): but if I am right on other issues the question does not really arise (and indeed did not have to be decided in CGIS).

Conclusion:

(1)       It is unlikely that a change in the ownership of land enjoying a right of light by consent will put an end to the consent unless the right as originally granted was specifically expressed to be personal.

(2)     At the same time, a change in ownership of the servient tenement is unlikely to end the original consent and start time running for the acquisition of a further right by prescription but;

(3)     a draftsman granting or reserving rights of way should take care to avoid any unintended results by specifically binding the grantors’ successors in title and benefitting the successors in title of the grantee.

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This Post Has 3 Comments

  1. raymond cooper says:

    I am indebted to Mr Gaunt for his comments, and in particular for his clarification of the point made in Gale that a consent / licence to do something (as opposed to an express right to build or interfere with light) is not itself an easement. Even an express right to obstruct light will not of course be an easement if it is subject to a consent or agreement as referred to in s.3 of The Prescription Act 1832, as the twenty year prescription period will not run. I come back however to the comment in my main post on the effect of s.62 of the Law of Property Act 1925. Rather than lengthen this additional comment by referring directly to the authorities I will comment by reference to Megarry & Wade’s The Law of Real Property (Eighth Edition) (Sweet & Maxwell). At paragraph 28–030 under “NATURE OF RIGHTS CONVERTED” the learned authors confirm that s.62 will convert into full easements a number of rights including a licence “provided that such right was enjoyed at the time when the conveyance was made”. The passage continues (quoting from White v Williams [1922] 1 K.B. 727) “it matters not … whether the user is continuous and permanent or permissive and precarious”. The authors add “in other words, it is the fact that the right has been enjoyed, not the legal basis upon which the right has been asserted, which is material, for (quoting from Wall v Collins [2007] EWCA Civ 444) “the key to the operation of the section is enjoyment in fact, not title”.
    In paragraph 22-031 the authors give a number of examples of cases where the right of a lessee enjoyed by consent (i.e. which is precarious) can be converted into an easement by the grant of a new lease by virtue of s.62. I have not been able to find any authority as to whether the position is same in the case of a conveyance of a freehold where the property enjoys a factual right of way by consent but I find it hard to see why there should be any difference. Sometimes, of course, conveyances specifically exclude the operation of s.62 but where they do not the question does arise of whether s.62 has the substantive effect of overriding the proviso to s.3 of the 1832 Act. I would very much welcome opinions on this point.

    Raymond

  2. raymond cooper says:

    Jonathan Gaunt QC, joint author of Gale on Easements has commented:-

    “It is good to see someone taking an interest in the mechanics of right to light deeds. I felt that previous editions of Gale and the other text-books had not done so, which is why I added most of paras4-32 to 4-47 in the new edition.
    You may well be right that (a) it is very-simple – if the s,3 consent is expressed to benefit successors in title to both parties (which it almost always will by reason of the parties being defined to include their successors), then it does – and (b) the construction in CIGS of the provision as a restrictive covenant is pretty fanciful. The difficulty that has to be faced, however, is that a consent/licence to do something is not an easement; so although both the successors to both the consentor and the consentee can adopt and continue the consent, they do not have to. An express right to build or to interfere with light probably is an easement but a mere consent to enjoy light is surely not – if it were it could not be terminated when the servient owner wanted to build. The answer to your suggestion that, if the consent does not pass, a successor to the consentee could be reqired to demolish the consented building is given in para4-44.”

  3. raymond cooper says:

    On reading through the comments above on the status of a grant of a right to light as a restrictive covenant, another question which occurs to me is whether (assuming that the grant of a right can create a restrictive covenant) the restrictive covenant and the easement are separate or both part of the same thing. The reason I think this is significant is that any restrictive covenant will be subject to the jurisdiction of the Lands Tribunal under s.84(1) of the Law of Property Act 1925. The question then is; what happens if a successful application is made (presumably by the dominant owner) to the Tribunal for the discharge of the restrictive covenant? Does the right go with it or continue to subsist as an easement? I would be very interested to hear comments on this point.

    Raymond

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