Rights of Light – Lost Modern Grant

Introduction

The concept of Lost Modern Grant is somewhat of an anathema and indeed the Law Commission Report 356 on Rights of Light actually sought to have this removed as an option under the easement of light following the earlier Law Commission report on “Making Land Work: Easements, Covenants and Profits à Prendre.”

Lost modern grant was explained by the Court of Appeal in Tehidy Minerals Ltd v Norman as being “where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was made.”

It was then stated that “the presumption that arises from 20 years’ use as of right cannot be rebutted even by proof that no grant was made. However, it is a good defence to a claim based on the doctrine that during the entire period when the grant could have been made, there was nobody who could lawfully have made it.”

Under the Prescription Act a claim for loss of light must be made on the basis that the light has been enjoyed for the 20 years immediately prior to the action. Where an owner fails to take action and the light easement has suffered an injury then they might still have the opportunity to pursue an action under lost modern grant which simply requires the easement to been enjoyed for any continuous 20-year period prior to the action.

It is said that the doctrine of Lost Modern Grant originated from issues regarding proof of enjoyment since 1189 (Time Immemorial) and the enactment of the statute of limitations in 1623 when it became possible to assert the enjoyment of an easement for 20 years without the need for any ?other explanation. At this point the enjoyment was presumed to be the result of a grant that could no longer be located but of course this was a legal fiction. The term Modern is assumed to relate to the fact that it post-dates 1189.

Relevant Case Law

If one researches cases that have actually been heard in court and published, then there are several that relate to the issue of access to land but very few indeed that relate to rights of light and, anecdotally, since injunctions are unlikely to be ordered under Lost Modern Grant, many cases are believed to have been resolved through negotiation of a financial settlement.

There has been an argument that an easement of light cannot be asserted under Lost Modern Grant (Tisdall v McArthur & Co [1951]) but the case of Simmons v Dobson [1991] which was not a rights of light case, confirmed that the acquisition of an easement can be established provided that it can be shown that the easement was enjoyed by the dominant tenement over the freeholder’s property for any continuous period of 20 years.

In Hyman v Van den Bergh (1907) the court considered a situation where the dominant owner had enjoyed the light for more than 20 years but then agreed to pay an annual amount for the use of the light which, in principle, amount to consent under the Prescription Act thus defeating sections 3 and 4 of the Act specifically as the action was commenced after the payments were commenced and thus not immediately after the 20 years enjoyment as an easement. However, in the obiter comments by Farwell LJ, it was clarified that, outside the Prescription Act, the period of 20 years need not be a fixed one i.e., not immediately before any action thus affirming the principle of Lost Modern Grant.

In the case of Marine & General Mutual Life Assurance Society v St James’ Real Estate Co Ltd (1991) the plaintiff claimed damages for the injury that would be caused by the defendant’s proposed development, under both the Prescription Act and Lost Modern Grant. The claim under the Prescription Act failed but succeeded under Lost Modern Grant even though the windows subject of the claim had been blocked for some time as the judge ruled that the right had not been abandoned. General damages were awarded as opposed to special damages (see below)

Critically the court will adopt the legal fiction of a lost modern grant unless it can be shown that it would have been impossible to have made such a grant through such things as incapacity, common ownership or the rarely used Custom of London.

Limitation Act 1980

Under the Limitations Act 1980 an action founded on tort cannot be brought after the expiration of six years from the date on which the cause of action accrued or where the claimant had knowledge and could reasonable have ascertained (with or without the help of expert advice) such facts so as to have knowledge. In most cases, after the expiry of the time periods specified in the Act, the?remedies?available for breaches are extinguished and no action may be taken in the courts in respect of those breaches.

The knowledge required includes the following:

·???????? that the injury in question was significant; and

·???????? that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

·???????? the identity of the defendant; and

·???????? if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.

The court may allow an action to proceed despite the expiry of the time limit if it would be equitable to do so, taking into account particularly:

·???????? potential prejudice to the claimant and defendant,

·???????? length of delay and reasons for delay,

·???????? extent to which the evidence is likely to be less cogent,

·???????? conduct of the defendant in responding to requests for information, etc.,

·???????? extent to which the claimant acted promptly; and

·???????? expert advice received by the claimant.

Since an injury to an easement of light comes under the tort of nuisance, it has been assumed that a claim under Lost Modern Grant had to be made within 6 years or possibly 6 years from when an absentee owner might reasonably have been expected to discover such injury for example. However, ?it has also been said that an obstruction of a right to light is a continuing nuisance implying that the continuing injury is self-renewing and so could extend the limitation period indefinitely. It was for this reason that the Law Commission report “Making Land Work: Easements, Covenants and Profits à Prendre” recommended the creation of a rebuttable presumption that an easement had been abandoned if it had not been used in the last 20 years and whilst this has never received Parliamentary approval there is an argument that such a limitation is justified on the basis that the servient owner, through 20 years undisputed use of their development have created their own easement of sorts.

When does Lost Modern Grant Expire?

Taking account of the notion of that the injury is of a continuing nature it might be said that Lost Modern Grant does not ‘expire’ However, once a structure has been in place for twenty years it could easily be argued that it has both gained its own quasi easement and that the interference with light should have been identified by any claimant at a much earlier date. Their failure to take any action prior to this might amount to acceptance.

In terms of risk for a developer or their insurer, there is a significant level of risk for the first 6 years, but this would reduce over the next 6 to 8 years and, as noted above, be very unlikely by 20 years and, realistically, this matches the intention of the Law Commission recommendations.

Would an injunction be granted?

In the absence of any leading cases on the issue there can be no certainty about whether or not an injunction would be awarded in an action for lost modern grant in respect of a right to light. The best guide would have to be by reference to the decision in Shelfer v City of London Electric Light Co (1895).

The standard tests which need to be satisfied in order determine whether or not an injunction would be appropriate are expressed as follows:

1.?????? Is the injury small?

2.?????? Is the matter capable of being estimated in money?

3.?????? Is it one which can be adequately compensated by a small money payment?

4.?????? Is it a case in which it would be oppressive to the defendant to grant an injunction?

In recent times another test that is applied is related to the conduct of the parties and perhaps it is appropriate to consider this firstly in connection with Lost Modern Grant.

Conduct of the Parties

Consider the case where a developer receives advice from specialists regarding the potential impact on the right to light of a neighbouring utility company’s offices. Despite this advice they proceed to develop in the belief that such a large organization would have very few visits by a central building manager who might comprehend the issue of rights of light and so they “take the risk” and make no contact with the owners. The development is completed and occupied for well over 12 months when the utility company’s building manager visits and immediately raises the issue. The developer does not respond. The utility company continue to write through their solicitor and eventually, some 6 months later, the developer’s solicitors respond to the effect that no right now exists under the Prescription Act because the obstruction existed for more than 12 months before the utility company took any action.

The utility company’s solicitor then issued a writ under Lost Modern Grant. How would a judge view the actions of the developer?

This is where the Shelfer rules would be considered.

Is it a Small Injury?

A relatively small injury in such circumstances should really have been dealt with under a pre-action protocol and not waste court time. Unfortunately, there are some parties who demand their day in court regardless, but it seems unlikely that a court would award an injunction for something considered small or de minimis. However, if it could be shown that the injury was not small or indeed so large as to be considered as causing harm to the occupants then this might warrant consideration.

Can the Loss be Valued?

It is generally accepted that a value of the loss can be made in most circumstances but there might, in theory, be circumstances where it was not possible to place a value in terms of special damages i.e., those that can be measured and thus general damages would apply and this relates specifically to the loss of amenity that was recognised in Carr Saunders v Dick McNeill Associates where most surveyors would agree that this would be a matter of negotiation or, in legal terms, “what feels right”. As such it might be estimated but would this satisfy the rule?

Would the Compensation/ Damages Amount to a Small Money Payment?

Until HKRUK v Heaney, most surveyors would consider a proposed compensation figure in relationship to the value of the development as a whole but in this case the judge considered the sums involved as being large in personal terms and thus granted an injunction. In some ways though this must be read as failing test 1 as the injury could not be said to be small.

Would it be Oppressive to Grant and Injunction

In Rights of Light cases, a claim for an injunction under Lost Modern Grant, outside of the circumstances in Marine & General, would be in a situation where the development has been completed and thus the injunction would be seeking demolition of the offending part which, of itself, may be deemed oppressive.

In the situation where the defendant has acted in good faith, perhaps unaware of an issue such as the easement of light, and the development has been completed and occupied then an injunction demanding the removal of the obstruction would appear patently unfair in almost any circumstances.

The question that must be answered is whether it would still be considered oppressive where the developer had not acted in good faith, and this is much more difficult to judge. If it could be said that the developer had, in some way, sought to deceive the dominant owner then this might go to the issue of bad conduct for which the court might judge that an injunction would be appropriate punishment but, in the absence of any relevant case law this is a moot point.

However, it is also relevant to consider the situation in the case of Marine & General the development where the development had not yet reached the point of injury at the time of the action, and it might have been possible to award an injunction. From the trial decision it is clear the claimants abandoned their claim for an injunction, and it is unclear whether this was because they believed that such a claim would not succeed or that there was some other reason.

Conclusion

In the absence of any specifically relevant case law, it is not possible to state how a court would treat Rights of Light claims based on Lost Modern Grant as time elapses. Such claims as have been reported anecdotally between experts all suggest that financial settlements have been achieved and these have all been well within the first six years after completion.

It appears likely, in the absence of very exceptional circumstances, that an injunction would be granted for the removal of any obstruction but there remains the possibility of an injunction being granted to prevent obstruction unless and until a case arises where this matter is resolved. ?

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