Rights to Light Case Law Willoughby v Eckstein

This article explains Rights to Light Case Law Willoughby v Eckstein, a 1937 Chancery Division decision that still matters for modern developments on long-leased estates. The judgment shows how carefully drafted lease wording can stop a tenant from acquiring a statutory right to light under section 3 of the Prescription Act 1832, even after more than twenty years of uninterrupted enjoyment. Where a lease both excludes rights of light and reserves a broad liberty to rebuild adjoining property, the tenant’s enjoyment of light remains permissive for the whole term and cannot mature into an absolute right.

Case overview

Court: Chancery Division

Judge: Luxmoore J

Parties and context: The claimant was the lessee of No. 13 Balfour Mews, Aldford Street, Westminster. The defendant was the lessee of the adjoining No. 15. Both held under the same ground landlord (the Duke of Westminster).

The claimant alleged that the defendant’s 1934 rebuilding raised the height of No. 15 and obstructed light to windows at No. 13, amounting to a nuisance or unlawful obstruction. The court directed a preliminary point on an agreed statement of facts to decide whether the claimant’s long enjoyment of light had been “by some consent or agreement, expressly made or given for that purpose by deed or writing” within section 3 of the Prescription Act 1832. If so, no statutory right would have accrued despite long use.

The leases and their decisive wording

The claimant’s title derived from an 1899 lease of No. 13. Two features were decisive:

The parcels conferred various mews rights but expressly excluded “any rights of light or other easements over other ground or premises.”

The lease was “subject to the adjacent buildings… being at any time or times rebuilt or altered according to plans… approved of by the ground landlord.”

The lessee also covenanted not to alter the height or elevation without written consent. The relevant windows at No. 13 had not changed since the 1899 grant. The defendant held No. 15 under a lease later replaced in 1934 and then carried out the 1934 rebuilding that diminished light to No. 13.

Section 3 of the Prescription Act 1832

Section 3 provides that after twenty years’ actual enjoyment of light “without interruption,” the right becomes absolute and indefeasible, unless the enjoyment was by consent or agreement “expressly made or given for that purpose by deed or writing.” It was accepted that the claimant had enjoyed light for the statutory period before the 1934 works. The issue was whether the lease documentation amounted to the kind of express written agreement that keeps enjoyment permissive and prevents accrual of the statutory right.

How the court framed the test

Luxmoore J distilled the proviso into three requirements:

The agreement must be by deed or writing.

It must be express.

It must be entered into for the purpose of regulating the enjoyment of light, such that the enjoyment is permissive during the term rather than absolute.

The focus is not on conferring a contractual “right to light,” but on whether the enjoyment of light has been expressly regulated by agreement so that it is permissive for the term. If so, section 3 cannot crystallise a statutory right.

Authorities considered

Mitchell v Cantrill (1887, CA) — words that simply except from the grant “rights restricting the free use of any adjoining land” are not enough. They avoid derogation from grant but do not regulate the enjoyment of light as permissive for the term.

Haynes v King (1893) — a lease expressly reserving to the landlord power to erect buildings on adjacent premises “whether such buildings shall or shall not affect or diminish the light” does amount to an agreement within section 3, keeping the tenant’s enjoyment permissive.

Foster v Lyons & Co. (1927) — similar reservation language (“full right to build to any height… notwithstanding such buildings may obstruct any light”) was treated as a grant back of the liberty to build and as an agreement preventing section 3 accrual during the term.

Morgan v Fear (1907, HL) — without an agreement of the section 3 kind, a lessee of plot A can acquire a statutory right to light over plot B (also under the same landlord) after twenty years’ enjoyment. Lease terms are needed to displace that outcome.

Counsel’s competing submissions

For the defendant: the 1899 lease’s express exclusion of rights of light, coupled with the positive reservation allowing adjacent buildings to be rebuilt or altered at any time with the ground landlord’s approval, formed an express written arrangement that the claimant’s enjoyment of light would be permissive for the whole term. That fell within section 3’s proviso.

For the claimant: section 3 requires an instrument that grants or expressly regulates light for the purpose of the enjoyment. A mere exclusion, they argued, is not an agreement of that kind. They relied on Mitchell v Cantrill (1887, CA) to say generic exceptions to appurtenances do not satisfy section 3.

The court’s reasoning

Step 1: Exclusion of rights of light

The explicit exclusion that the demised premises included no “rights of light or other easements over other ground or premises” showed the lessee took no absolute right of light over neighbouring estate land under the lease.

Step 2: Positive liberty to rebuild

The lease then added that the premises were subject to adjacent buildings being “at any time or times” rebuilt or altered to plans approved by the landlord. Read with the exclusion, this operated as a grant back of a liberty to build during the full term, notwithstanding any effect on the claimant’s light. Together, these clauses amounted to an express agreement that the claimant’s enjoyment of light was permissive for the whole term.

Distinguishing Mitchell v Cantrill (1887, CA)

Mitchell involved a general exception to appurtenances that prevented derogation but did not speak to how light would be enjoyed in practice. In contrast, Willoughby couples a specific exclusion of rights of light with a positive reservation authorising adjoining rebuilding approved by the landlord. That pairing expressly regulates enjoyment for section 3 purposes.

Judgement - Rights to Light Case Law Willoughby v Eckstein

The court held that the lease contained a sufficient agreement or consent in writing relating to the enjoyment of light for the purposes of section 3. The claimant’s enjoyment had been permissive for the whole term, preventing the acquisition of a statutory right to light despite more than twenty years of actual use. The preliminary issue was decided against the claimant on the section 3 question.

Download Judgement

Principle distilled

To prevent a tenant from acquiring a statutory right to light under section 3, the lease must contain an express, written agreement that the tenant’s enjoyment of light remains permissive for the whole term. This can be achieved by combining a clear exclusion of rights of light with a positive, unfettered liberty to rebuild or alter adjacent property, even if doing so diminishes the light.

Practical implications

1) For landlords and estate owners

Use explicit exclusions of rights of light in the parcels.

Reserve a wide right to rebuild or alter any adjoining premises “to any height,” “at any time,” and “notwithstanding” any effect on light, subject to landlord-approved plans.

Place these provisions in the operative parts of the lease so they read as an express written agreement regulating enjoyment for section 3.

2) For tenants

Long, unchallenged daylight does not guarantee a statutory right if your lease excludes rights of light and reserves a robust liberty to rebuild next door.

Before committing to alterations or litigation anchored in section 3, review the lease instruments carefully. Your enjoyment may have been permissive all along.

3) For developers and project teams

On multi-plot schemes under a common landlord, check for Willoughby-style wording in historic leases. If present, exposure to section 3 claims may be reduced.

Where wording mirrors Mitchell v Cantrill (1887, CA) - that is, generic exceptions only - risk from section 3 may persist.

4) Drafting lessons

Be specific: tie the drafting to light and rebuilding; generic exceptions rarely suffice.

Cover the full term: ensure the liberty to build is not time-limited so enjoyment remains permissive throughout.

Show a mechanism: link rebuilding to landlord-approved plans to demonstrate practical effect, not boilerplate.

Where Willoughby sits among the classics

Willoughby v Eckstein (1937) aligns with the strand of cases exemplified by Haynes v King (1893) and Foster v Lyons & Co. (1927), which accept that an instrument can expressly regulate enjoyment so as to keep it permissive for the term. Mitchell v Cantrill (1887, CA) is the cautionary foil: mere exceptions to appurtenances are insufficient. Morgan v Fear (1907, HL) provides the backdrop where, absent such wording, long enjoyment crystallises a statutory right.

Worked example

Imagine a mews regeneration where each plot is long-leased under one estate owner. Each lease states that the demised premises do not include any rights of light over other premises and are subject to adjacent buildings being “at any time or times rebuilt or altered” to plans approved by the landlord. After twenty-five years of tranquil enjoyment, a neighbour increases the parapet height and reduces light to your windows. On Willoughby’s logic, your enjoyment was never absolute; it remained conditional on the landlord’s reserved liberty to rebuild. Section 3 does not crystallise a right to light in those circumstances.

Limitations and nuance

Fact sensitivity: outcomes turn on specific drafting. Weaker or ambiguous wording may not satisfy section 3’s proviso.

Other causes of action: this case addresses section 3 accrual. Express easements, independent nuisance claims, covenants, or freehold titles may lead to different results.

Common-landlord context: the decision arose on a large estate. The logic travels well, but always map the property relationships carefully.

Key takeaways

Pair exclusion with permission: combine an express exclusion of rights of light with a positive liberty to rebuild adjoining property to defeat section 3 accrual.

Permissive enjoyment defeats accrual: if the lease makes enjoyment permissive for the term, twenty years’ use will not become an absolute statutory right.

Drafting beats default: without an express agreement, long enjoyment can crystallise a right binding neighbours and landlord; with it, section 3 claims can fail at the threshold.

Generic exceptions are not enough: clauses like those in Mitchell v Cantrill (1887, CA) usually fail because they do not expressly regulate enjoyment of light.

Portfolio strategy: estate owners seeking redevelopment flexibility should audit leases for Willoughby-style clauses and update precedents. Tenants should scrutinise leases before relying on section 3.

Conclusion

Rights to Light Case Law Willoughby v Eckstein confirms that lease drafting can trump the default accrual rule in section 3 of the Prescription Act 1832. Where the lease both excludes rights of light and reserves a broad liberty to rebuild adjoining property, the tenant’s enjoyment of light is permissive for the whole term and no statutory right arises, despite decades of use. For landlords on large estates, this preserves redevelopment capacity. For tenants, it is a reminder that long enjoyment alone is not enough where the lease says otherwise.

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Rights to Light Case Law - Resources

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Contact : Rights to Light Case Law Willoughby v Eckstein

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