RHJ Ltd. v FT Patten (Holdings) Ltd & Anor

For section 3 of the Prescription Act 1832, a written agreement need not use the word “light”. The question is one of construction. A clause dealing only with rights existing when a lease is granted generally prevents an express or implied grant, but does not prevent later acquisition by prescription. A clause dealing with future building may prevent prescription where, fairly construed, it makes clear that any enjoyment of light is not absolute and indefeasible. A reservation giving the landlord a full and unrestricted right to build as the landlord thinks fit may therefore amount to the required agreement or consent.

RHJ Limited, the freehold owner of Regian House, sought determination of a preliminary issue concerning rights to light enjoyed by the leasehold building. The lease contained a clause excluding implied grants of easements and a reservation of a full and free right to erect, rebuild or alter buildings on adjoining land and across adjoining streets.

The assumed facts included twenty years’ enjoyment of light before registration of a Light Obstruction Notice. The central question was whether the building reservation constituted an agreement or consent in writing for the purposes of section 3 of the Prescription Act 1832, despite not expressly mentioning light.

1. Statutory distinction. Under section 3 of the Prescription Act 1832, once twenty years’ actual enjoyment of light is established, the right is deemed absolute and indefeasible unless the enjoyment was by consent or agreement expressly made or given by deed or writing. The agreement need not necessarily make enjoyment permissive. It is sufficient if it makes clear that the right is not absolute and indefeasible.
2. Construction of the writing. The issue is the substance and proper interpretation of the relevant clause. An express reference to light is not essential. Clauses dealing only with the position at the date of the lease generally negative an express or implied grant and do not prevent a later prescriptive right. Clauses dealing with future building may do so where the authorised building could interfere with light and the clause, fairly read, reserves an unrestricted building right.
3. Application. Clause 2 addressed the position at the grant by excluding implied easements. Paragraph (i) of the First Schedule addressed future conduct. Its reservation of a “full and free” right to build, and of a right to build as the landlord “may think fit”, would be defeated by an indefeasible right to light. Properly construed, it made clear that the tenant was not to acquire such a right and constituted an agreement or consent within section 3.
4. Disposition. Clause 2 and paragraph (i) prevented acquisition of rights of light over the defendants’ land.