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Property: CGIS City Plaza Shares 1 Limited & CGIS City Plaza Shares 2 Limited v BRITEL Fund Trustees Limited [2012] EWHC 1594 (Ch)

The Claimants (C) were the registered freehold proprietors of the dominant land.

The Defendant (B) was the registered owner of the servient land. In 1967 a conveyance was made between C′s predecessors in title, the Bank, and B′s predecessors in title, the Corporation. Under clause 1(b) of the conveyance, the Corporation granted the Bank and its successors in title the right to build without regard to any interference with light or air "now or at any time hereinafter enjoyed by the buildings for the time being erected on any adjoining adjacent or neighbouring land owned by or vested in the Corporation."C argued that it was entitled to an easement of light pursuant to the Prescription Act 1832 ("the Act"). The principal issue was whether clause 1b accorded the Defendant (and its successors in title) the right to interfere with the enjoyment of light and air in respect of the dominant land or whether that right was contingent upon the Corporation's continued ownership of the servient land. The latter construction disengaged the applicability of the proviso in s.3 of the Act as there had been no "consent or agreement expressly made or given for that purpose".

In refusing C′s application, the Court held that the proviso in s.3 was applicable to clause 1(b). The authority to build in the future, notwithstanding any resultant interference with light enjoyed by the dominant land, may be construed as consent or agreement permitting the enjoyment of light during the interim period and therefore precluding any easement by prescription arising under the Act.

It accorded with business common sense to construe the purpose of the words at the end of clause 1(b) as identifying the buildings concerned by reference to their physical status or location, rather than by reference to their ownership. The phrase "for the time being" positioned at the end of the clause qualified the word "buildings" and not the ownership of the land. Accordingly the proviso in s. 3 was engaged. The dominant land′s enjoyment of light over the servient land continued to subsist by the permission granted by the conveyance, notwithstanding the change in ownership.

Elizabeth Dwomoh
August 2012

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The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.

Elizabeth Dwomoh / 1st Aug 2012


Disclaimer

The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.


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