Recital of A.'s title to land formerly the site of buildings. B.'s title to adjoining land. Agree ments as to lights. XVI. AGREEMENT between OWNERS and LESSEES of Two PARTIES, A. 1, B. 2, C. 3. WHAS the sd A. is seised in fee yrs from the day of - of anor plot of land (a) Where access of light to a building has been enjoyed for twenty years without interruption, the right thereto becomes indefeasible, unless the enjoyment was pursuant to a contract in writing. See the Prescription Act, 2 & 3 Will. 4, c. 71, ss. 3 & 4; Shelford R. P. Stat. pp. 11 et seq.; Tudor L. C. Conv., notes to Sury v. Pigot, p. 154. As to the time when time begins to run in the case of an unfinished house, see Collis v. Laugher, [1894] 3 Ch. 659. Frequently a small nominal rent is agreed to be paid for permission to continue an encroachment with the object of preventing an easement from being acquired. The payment of rent under a parol agreement of this nature is not an interruption of the user under s. 3 of the above Act (Plasterers' Co. v. Parish Clerks' Co., 6 Ex. 630), and where there is an agreement in writing for payment of the rent, the non-payment of the rent for twenty years may afford some evidence that the agreement has been put an end to (per James and Thesiger, L.JJ., Bewley v. Atkinson, 13 Ch. D. 293, 296); but the payment of a rent by way of acknowledgment, though not essential, is useful as a means of ensuring that the tenant for the time being in possession shall have notice that the enjoyment of the easement is permissive only; for which purpose the demand of payment should be regularly made on the person in actual occupation. Where either property is in lease, the lessor is sometimes made a party to the agreement; if this is not done, notice of it should be given to him; and in general it is desirable that notice should be endorsed on the lease, and on one or more of the leading title-deeds of both tenements. As to constructive notice of an agreement granting an easement, see Allen v. Seckham, 11 Ch. D. 790. As to the effect of rebuilding on the same or an altered site as regards the right to ancient lights, see Heath v. Bucknall, 8 Eq. 1; Staight v. Burn, 5 Ch. 163; Aynsley v. Glover, 18 Eq. 544; National, &c., Co. v. Prudential Assurance Co., 6 Ch. D. 757; Ecclesiastical Commissioners v. Kino, 14 Ch. D. 213; Newson v. Pender, 27 Ch. D. 43; Bullers v. Dickinson, 29 Ch. D. 155; Greenwood v. Hornsey, 33 Ch. D. 471; Pendarves v. Monro, [1892] 1 Ch. 611; 29 Sol. J. 62. As to the effect of a verbal agreement to grant an easement where there has been part performance, see McManus v. Cooke, 35 Ch. D. 681. (the two Proposed new build ings by A. X. court abut on the backs of other houses situate on the north side of Y. street, in the sd parish of ppties being divided by a divon or pty fence wall), wch houses in Y. street, with other ppty, are held by the sd B. (upon certain trusts under wch the sd C. is absolutely entled to the beneficial intt thrin), under a lease for the residue of a term of yrs commencg on the day of & are underlet ptly upon lease & ptly to yrly tenants: AND WHAS the sd A. has pulled down the sd houses on the south side of X. court, with the view of erectg on the site thof other bldgs of greater height & magnitude, & he intends to cover over or ptly to cover over the site of the back yards of the sd houses so that (as) alleged by the sd B., though not admitted by the sd A.), the ancient lights of the sd houses in Y. street wd be interfered with, & the free access of light & air thto (as htofore) wd be materially obstructed: AND WHAS plans and elevons of the Plans houses so pulled down by the said A. & of the new bldgs & improvemts so as afsd to be erected & extd by the sd A. have been submitted to Mr. the surveyor of the sd B., & signed by such surveyor & by Mr. the architect of the sd A., & annexed to this agrmt, & the plans & elevons of the sd new bldgs & improvemts so signed are hinafter for brevity referred to as "the sd plans": AND WHAS for obviatg applicon by the Introductory sd B. for restraing the sd A. from pedg with the sd proposed recital. bldgs & improvemts, & for fixg the terms on wch the consent of the sd B. to the exon thof is intd to be given, the sd pties hto have entd into the arrangemt hinafter appearg: NOW in conson of the premes the sd A. & the sd B., with the consent hby testified of the sd C., HBY MUTUALLY AGREE as follows: 1. THE sd A. shl not, by reason of the eron & exon of the proposed bldgs & improvemts, acquire as agst the sd B. or the psons claimg under him (b) any further or more extensive rt to the access & use of light to & for such bldgs than he, the sd A., is entled to in respt of the sd houses & bldgs lately standg on the south side of X. court afsd, & any access or use of light to or for the sd proposed new bldgs more extensive than that (b) If the property is settled and B. does not take the legal fee, substitute in this and other places for " claimg under him," the words "under the settlor deced." agreed upon. A. not to acquire any more exten sive right to light in respect of new buildings. A. to permit erection of similar buildings on adjoin ing land. Consent by B. to new buildings. wch was enjoyed as of right to or for the sd houses & bldgs lately standg on the south side of X. court afsd, shl so far as regards the sd B. & the psons claimg under him be deemed permissive & enjoyed by consent under this agreemt, so as to prevent the sd A. or the psons claimg under him from havg any legal or equitable rt, claim, or remedy agst the sd B. or the psons claimg under him, in respt of any obstron or detrimt to such addonal access or use of light, occasioned by any bldgs or improvemts upon, or other reasble use of the sd houses or any adjacent ppty of the sd B. 2. THE sd A. & the psons claimg under him will not, in respt or under colour of his psnt or any future rts to the access or user of light or air, by any means seek to restrain or prevent the sd B. or the psons claimg under him from doing or causg to be done, or bring any action for damages or institute or promote any other legal pcdgs in respt of his or their doing or causg to be done any of the things follg, & the sd A. (so far as depends upon him), hby authorises & consents to, & agrees that the psons claimg under him shl authorise & consent to the doing of the same, that is to say:-First, erectg on the site of the sd houses in Y. street, or any pt thof (not being within a distce of feet from the boundary wall of the two ppties), any bldgs not exceedg in height the bldgs proposed to be erected by the sd A. as shown on the sd plans. Secondly, coverg over & alterg the psnt back yard, sheds, & offices of the houses in Y. street, or the sites thof, or any pt thof, up to the sd boundary wall in the way in wch the back yards of the houses in X. court are intd to be covered over & altered as shown in the sd plans, or in any other way not more prejudicial, as regards the access of light & air, to the X. court ppty of the sd A. 3. In conson of the sd agrmts on the pt of the sd A. the sd B. & the psons claimg under him will not by any means seek to restrain or prevent the sd A. or the psons claimg under him from erectg and extg the sd proposed bldgs and improvemts accdg to the sd plans, or bring any action for damages, or institute or promote any legal pcdgs in respt thof, but so far as depends on him he, the sd B., hby authorises & consents to the eron & exon of the sd proposed bldgs & improvemts accdg to the sd plans. notice of claiming under him. 4. THE sd A. & the psons claimg under him will, by insertg A. to give notice of the stipulons hinbfe contd in favour of the sd B. & agreement the psons claimg under him, in leases and other munimts, & to persons by such other reasble means as circes may require or admit (& as well in complice with any special reqt in that behalf on the pt of the sd B. or the psons claimg under him as witht such special reqt), use his best endeavours to cause the sd stipulons to run with the sd X. court ppty, & bind all psons interested thrin as owners, lessees, occupiers, or orwise. IN WITS, &C. XVII. AGREEMENT for PREVENTING the acquisition of an PARTIES, A., one owner, 1. B., other owner, 2. WHAS the sd Recital A. is seised in fee simple of the house No. in street, of title. Variation (a) See note to last Precedent. The following clauses are adapted to the Recitals. case of one of the parties being only a lessee :-Recite that A. "is seised in fee simple of a pce of bldg ground situate, &c.," and that Lease to B. B." is lessee for an unexpired term of yrs of an adjoing pce of ground on wch he has erected a house & other bldgs. known as, &c., the windows whof overlook the sd ppty of the sd A.," & that "the sd A. has threatened to obstruct the access of light and air to the sd house & bldgs of the sd B. through or by means of the windows afsd. NOW in order to avoid any disputes IT IS HBY MUTUALLY DECLD AND AGRD betn the pties hto as follows: of light and air to be deemed permissive. 1. THE sd B. (so as to bind himself & his exs & ads, & his & Enjoyment their intt as lessees & the intt of all psons claimg through or under him or them by assnmt, underlease or orwise, but not so windows to as to prejudice his or their lessors or to work a forfeiture of the sd lease), doth hby for himself & his exs, ads, & assns acknowe that the access of light & air to the sd house & bldgs through or by means of the windows afsd is had & enjoyed by him solely by the permission & sufferce of the sd A., & so that K.E.-VOL. I. E New windows opened by A. Enjoyment of light to window to be deemed permissive. Covenant to pay nomi nal rent as acknow ledgment. Rescission. Lease not to be as signed, &c., without notice. Access of light and air not to be interrupted without notice. in the parish of, &c., & the sd B. is seised in fee simple of the house No. in the same street; AND WHAS the sd A. has recently opened two new windows in his sd house overlookg the back yard of the sd house of the sd B.: NOW it is HBY MUTUALLY DECLD AND AGRD as follows: 1. THE sd windows shl be deemed to have been opened with the express permission & consent of the sd B., & the enjoymt hrafter by the sd A., his hrs & assns, or any pson or psons claimg under him or them, of the access & use of light or air to the sd house & premes belongg to him the sd A., by means of such windows, shl be deemed to be with the express permission & consent of the sd B., his hrs & assns, to the intent that the sd A., his hrs & assns or any pson or psons claimg as afsd, shl not acquire any easemt or rt in respt thof. [2. THE sd A., his hrs & assns, shl pay to the sd B., his hrs & assns, by way of acknmt for the permission hby given to keep open the sd windows so long as this agrmt shl continue the yrly rent or sum of one shillg on the day of in every yr if demanded.] 3. EITHER of them the sd A. & B., or his hrs or assns, may at any time hrafter determine this agrmt by givg to the other of them, his hrs or assns, a notice in writg in that behalf. Such notice shl be sufft if given to the owner or occupier, or one of the owners or occupiers of the sd house and premes now belongg to the other of them, the sd A. & B. (not being a mere caretaker or servant), or to some pson claimg to be such owner or occupier, or one of such owners or occupiers, psonally, or if sent by post addressed to the owner or occupier of such last mentd premes, or some one of such owners or occupiers eir by no easemt or right in respt thof shl be acquired by prescription or orwise by him the sd B. his exs, ads or assns. 2. THE sd B., his exs, ads, & assns, shl not assn or underlet the sd house & premes or allow his or their leasehold intt thrin to expire or cease by surrender, forfeiture or orwise witht givg written notice thof to the sd A., his hrs or assns. 3. THE sd A., his hrs & assns, shl not obstruct or intercept the access of light & air to the sd house & bldgs of the sd B. witht givg three calr months' notice of his or their intention. in that behalf to the pson in posson thof. |