Property developers are well used to dealing with the tangible, physical aspects of real estate ownership and construction. But it’s not just the bricks and mortar that has to be thought through. Problems often arise with less obvious, intangible aspects of properties; rights to light are a classic example. Developers – and those that advise them – need to take account of the rights of neighbouring landowners and consider how to deal with the risk of light-related claims.

A major part of a developer’s risk strategy when it comes to rights to light, is establishing how many occupants’ rights the finished development will infringe, to gauge the size of the potential problem.

What is a right to light?

• It’s an easement or right enjoyed over neighbouring land belonging to someone else
• The right of having natural light that passes over the neighbouring land through a clearly defined aperture (i.e. a window). The demolition or redevelopment of a building may not extinguish an already established right
• The right is not capable of benefiting land in general and cannot exist in favour of open areas (e.g. gardens)
• The landowner who has the benefit of the right does not need to take any steps to acquire it

How to acquire a right to light

The most obvious means of obtaining a right to light is by way of express grant in a deed or implied by statute (e.g. section 62 of the Law of Property Act 1925). However, the most common method of acquiring a right is by long use. A right to light can be acquired by long use on the basis of:

1. By prescription under the Prescription Act 1832: this is by far the most common way of acquiring a right to light and is available to both freeholders and leaseholders. In summary:
   • the light has been enjoyed without interruption for at least 20 years (although this can be defeated if the light is obstructed for one year continuously during that period)
   • the light has been enjoyed without any written consent
   • the light has been enjoyed without force, without secrecy and without permission
2. Prescription at common law: the freeholder must prove the enjoyment of the right from “time immemorial” being 1189, the beginning of legal memory; or
3. The doctrine of lost modern grant: the Court will assume a fictitious grant of the right if the user can prove that they’ve enjoyed the right for twenty years or more.

Infringement

Under the Prescription Act 1832, to claim an infringement of a right to light the following should be borne in mind:

• There is a limitation period of 12 months which begins once the enjoyment of the right has been interrupted. However, last year in Beaumont Business Centres Ltd v Florala Properties Ltd [2020] EWHC 550 (Ch), the High Court granted an injunction two years after the development had been completed, due to the unneighbourly behaviour of the developer.
• The claimant must prove that the reduction in light has caused (or will cause) a substantial interference with the claimant’s enjoyment of their property.
• The test is how much light would remain and whether the remaining light is sufficient for the ordinary use of the property/room impacted. For example, a greenhouse would have very different light requirements to a residential dwelling.
• Two remedies are available: either damages or an injunction. The latter remedy is rarely available to claimants but, if granted, it can have drastic consequences for a development.

How can we help?

To avoid possible legal action, a developer should formulate a strategy at an early stage to mitigate losses suffered as a result of a right to light breach. This can be done as part of the design stage but where this is impractical and the breach is inevitable, it is important to engage with the owner to reach an amicable settlement as soon as possible. A developer should always consider obtaining an insurance policy to cover such losses and this may be required by a funder.

A property owner whose right to light has been (or will be) infringed should seek legal advice as soon as possible to ensure that they do not get caught out by the limitation period under the Prescription Act.

For more information contact:

• Adrian Footer on +44 (0)20 7216 5536 or a.footer@druces.com