Rights to light are a key consideration for both developers and those who own property in the vicinity of a proposed development. With the potential to halt major building projects, rights to light need to be carefully considered by developers. Here we examine some of the key features and the steps which a party can take to protect their position.
What is a right to light?
A right to light is a right to receive light to apertures in a building situated on land (the "dominant" land) over adjacent land (the "servient" land). Apertures include ordinary windows, skylights, glass doors, archways, conservatories and greenhouses.
Rights to light are a type of easement and can be created expressly in writing, by implication or through long user. In this article, we are going to focus on rights acquired through long user, as they are most commonly encountered in practice, and do not need to appear on a property's title register to be valid and enforceable.
Rights acquired through long user
There are two main ways that a right to light can be acquired through long user:-
- The Prescription Act 1832. This requires enjoyment of a right to light for at least 20 years working back from the present time.
- The doctrine of lost modern grant. This is based on proof of user for at least 20 years, but not necessarily the last 20 years. It is a presumption that there must have been a deed of grant but that it has been lost. This doctrine is useful if there has been an interruption of the right during the last 20 years that would prevent a Prescription Act claim.
A developer can serve and register a light obstruction notice, which acts as a notional interference with an adjoining owner's enjoyment of light and can (if served in time) prevent rights to light being aquired through long user.
What enforcement action can a dominant owner take?
When a dominant owner is faced with an actionable interference of their right to light, the Court may award them an injunction, preventing the interference (which may stop development on the servient land proceeding, entirely or partially – or even require buildings already constructed to be taken down) or, the Court may take the view that monetary compensation is adequate, and award damages in lieu of an injunction. It is difficult to predict which option a Court will choose when faced with a claim for interference. In the decision in Coventry v Lawrence (2014) the Court said:
"it is right to emphasise that, when a judge is called on to decide whether to award damages in lieu of an injunction, I do not think that there should be any inclination either way (subject to the legal burden [of proof]): the outcome should depend on all the evidence and arguments.”
Release of rights to light
Due to the uncertainty surrounding what remedy will be granted by the Court on an application by a dominant owner to enforce their right to light, many cases will settle by agreement between the parties. This will take the form of a deed whereby the dominant owner releases their rights to light, in exchange for the payment of compensation.
The recent launch of the Rights of Light Protocol (the "Protocol") aims to provide a clear framework for developers to follow to resolve potential rights to light claims quickly and cost effectively. The Protocol has been endorsed by the Royal Institute of Chartered Surveyors.
Registration requirements at the Land Registry
The Land Registry has recently published a new Practice Guide on “Rights to light or air” (Land Registry Practice Guide 62A), setting out the requirements for registration in relation to rights to light under the Prescription Act 1832 and deeds.
Registration of prescriptive rights
Usually, if a right affecting a property is not registered on its title, it will not be perfected in law. There are exceptions, and prescriptive rights to light are one of them.
While a prescriptive right to light over registered land does not need to be registered to take effect at law, there are advantages to registration, which include the notification of interested third parties.
The Practice Guide (along with Practice Guide 62 on easements by prescription generally) explains the application process and the entries that may be made by the Land Registry in response to an application to register a prescriptive right to light.
Broadly speaking, to make an entry recording the existence of prescriptive rights, the Land Registry requires an application to change the title registers, together with a sworn statement setting out the facts as to how the prescriptive right came into being.
Registration requirements – Deeds
If rights to light appear on a register and are fully released by deed, the Land Registry will either delete the original entry or make a note that the rights have been fully released.
Because most rights to light issues arise as a result of the development of adjoining land, it is usually the case that rights to light will be partially released, allowing a certain defined development to proceed within an agreed profile.
Land Registry Practice Guide 62A explains that where they receive a deed of release and the rights to light appear on the register, they will usually add a note to reflect the variation effected by the deed and keep a copy of the deed.
There is no need to register a deed unless the rights being released already appear on the title register.
Closing remarks
Rights to light is a specialist area and early advice should be sought on how to navigate the issues they cause. This article is intended as a short introduction to the subject so please get in touch with our experts if you require any advice.
