This section is from the book "Modern Buildings, Their Planning, Construction And Equipment Vol3", by G. A. T. Middleton. Also available from Amazon: Modern Buildings.
As a general rule, when land or an easement is conveyed by deed, the grantee derives title by implied grant to any easement affecting the land of the grantor which is necessary to secure to the grantee full enjoyment of the land or easement granted.
There is a presumption that at the time of the original grant it must have been the intention of the parties that the grantee should have the means of using and enjoying the thing granted, and therefore that he should have all rights and powers over the land of the grantor which might be necessary for the full use and enjoyment of the subject matter of the grant.
This principle is often applied to cases where a man who owns neighbouring land and houses sells the houses or land separately, retaining some portions of his estate while transferring others, or sometimes when a man sells different parts of his estate at the same time to different owners, or when he directs a partition of his land and house property by will.
Easements of light may be created by implied grant, on the principle above enunciated, in favour of purchasers of separate houses from builders or other persons who have one or more houses to dispose of, and contiguous land not covered with buildings.
If a man, having a house and land, sells the house and keeps the land, there is ordinarily an implied grant of an easement of light over his land for the windows of the house sold, or an implied covenant not to obstruct, so that he cannot afterwards build on the land retained in his possession in such a manner as to obstruct the windows or any of them to an actionable extent. It is a presumption of law that, in selling the house with windows, he and the purchaser must have intended that the windows should be usable after the sale as before ; and having sold the house with windows in it, the original owner could not afterwards derogate from his grant or violate his implied covenant by making the house less valuable or comfortable to live in by obstructing the lights.
If the original owner wanted to reserve a right to build in a particular way on the land retained, so as to substantially diminish the light which could reach the windows of the house sold, or any of them, there should have been an express reservation in the deed of conveyance of the right to so build.
If the vendor could not, after selling the house, build on his remaining land so as to block any of its lights, it follows that a subsequent purchaser of the land also could not be allowed to obscure the lights. The purchaser could not acquire a better title than his vendor.
It is necessary, however, to note that, although an implied covenant not to obstruct the windows may be presumed against the vendor of a house who has not specifically reserved a right to build on the adjacent land, it is possible in some cases to adduce evidence from which the presumption of an implied covenant can be rebutted. In several cases it has been held that all surrounding circumstances must also be taken into consideration.
For example, suppose an estate were being developed by being laid out and built over in accordance with a definite prearranged plan, and a man were to purchase a new house on one side of an unfinished street after studying the plan of the proposed building operations, he could not afterwards be allowed to object to the erection of buildings on the opposite side of the street in which his new house was situated ; at least, he could not do so if the buildings opposite were such as he had been informed were intended to be erected in accordance with the settled plan.
The grant of light in such a case must be taken to be such light as he would have after the contemplated buildings, of which he had prior knowledge, should have been erected.
Suppose, again, that instead of adhering to the original plan of building operations, the vendor should change his mind after the original sale of the house, and wish to build taller houses on the opposite side of the street, the purchaser might have just ground of complaint, because an implied covenant to leave his lights unobstructed except by buildings of the kind contemplated at the time of purchase would have been broken.
When implied covenants are in question there may easily be much ground for dispute concerning what exactly has to be implied.
These cases of implied covenants which operate as.
Light: Acquisition of the Right grants of easements of light arise commonly out of conveyances under the Conveyancing Act. The circumstances of different cases may vary to an indefinite extent, and each case of dispute must be adjusted on its individual merits. Among other circumstances which may need to be taken into account may be the nature of the vendor's agreement with the freeholder, when he is not himself the freeholder.
In one case it has been held that a reference in the conveyance and a plan to adjoining land as " building land " did not suffice to deprive a purchaser of the benefit of an "implied covenant" for unobstructed lights at the side of a building he has purchased. It has been held also that a mortgagee, selling a house under a power of sale and reserving the adjoining land which was included in the same mortgage, had power to grant an implied covenant for light as if he were absolute owner in his own right.
When a man owns house and land, and sells the land while retaining the house, the presumption is that he sells the land unburdened by any easement of light, so that the purchaser may, if he pleases, build close up to the margin of the land purchased, and may thus block any or all of the windows in the house. Here the vendor, if he had chosen to do so, might have refused to sell the land unless the prospective purchaser would consent to execute a covenant not to obstruct any of the windows of the house ; but, having conveyed the land without any express restriction, or without obtaining at the same time a definite grant of easement rights from the vendee, it must be taken that in conveying his land to the purchaser it was mutually intended that the land should be conveyed free of all burdens so far as the vendor was concerned.