Building agreements between neighbours are not unusual. They may include an express release of rights of light or a reciprocal agreement allowing neighbours to build on their respective lands without objection. Unfortunately not all agreements are well drafted and arguments about interpretation frequently arise. Their meaning may have significant consequences, particularly where the ability to build has an impact on the viability of a development scheme.
An argument about the ambit of such an agreement came before Mr Justice Lewison in a recent High Court case. He had to decide whether a lease which reserved to the landlord a right to build on adjoining land prevented the tenant from acquiring a right to light by prescription even if the reservation did not expressly mention rights of light.
He concluded that it was not necessary for an agreement to make express mention of light in order to effectively exclude rights relating to it. What is needed is that the clause makes it clear that the enjoyment of light is not absolute and indefeasible. The court must "find out the substance of the contract" in interpreting the clause in question. There is a difference between clauses that deal with the position as it exists at the date of the agreement and clauses that deal with what will happen in the future. If the landlord reserves a full and free right to build on adjoining land in the future that right to build would be improperly fettered by an assertion of a right to light.
The interpretation of every agreement turns on its precise wording, however, Mr Justice Lewison’s decision here illustrates a commonsense approach.
Although the court was looking at the wording in a lease dealing with rights between landlord and tenant, the same principles will apply to agreements between neighbours. His decision is of particular interest in the current climate where the value of rights of light has increased exponentially, courtesy of a number of recent decisions (for instance see my previous LawNow on the Tamares case).
Further reading:
RHJ Limited v FT Patten (Holdings) Limited (1) FT Patten Properties (Liverpool) Limited [2007] EW HC 1655 (Ch).
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The original publication date for this article was 03/09/2007.