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Excluding the right

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Excluding the right

Prescription Act 1832

Section 3 of the 1832 Act provides as follows:
    "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 20 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 was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."
This page deals with three cases in which the proviso has been considered.

Reservation in a lease

RHJ Limited v FT Patten (Holdings) Limited
[2008] EWCA Civ 151


The reservation in a lease of a right to build on adjoining property prevented the tenant from acquiring a right to light by prescription over the adjoining property even though it did not expressly refer to the right to light.

Section 3 of the 1832 Act

Under section 3 the enjoyment of light does not need to be 'as of right' as that expression is generally used in the law of easements. Nor is a prescriptive right under section 3 confined to a freehold right. Thus "a tenant can acquire a right to light over adjoining land even if that land belongs to his landlord and is let to another tenant. Common ownership is not relevant, although common occupation would be relevant." (paras 2 and 3).

The lease in this case

In this case the question was whether or not a clause in a lease that reserved to the landlord a right to build on adjoining land made clear that the tenant was not to have an absolute and indefeasible right to light and therefore operated as an agreement or consent for the purposes of s.3 of the 1832 Act.

The relevant clause in the lease reserved to the landlord "the full and free right to erect build rebuild and/or alter as they may think fit at any time and from time to time any buildings or bays or projections to buildings on any land adjoining the demised property and/or on the opposite sides of the adjoining streets and access ways".

The issue

It is to be noted that the reservation in the lease did not expressly refer to the right to light. Did the absence of ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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