Rights of Light: key considerations

In case you missed it, we looked at Restrictive Covenants and the risks faced by developers when purchasing land affected by a Restrictive Covenant.

• Restrictive Covenants on title: key considerations 

What are Rights of Light?

Rights of Light are a form of easement which entitle a landowner to receive natural light, passing over somebody else’s land and through 'defined apertures', such as a window or skylight, in buildings on their land.

How are Rights of Light acquired?

A Right to Light can be acquired through express grant or reservation, implied grants or long use. If a property has had uninterrupted enjoyment of light for more than 20 years, it is likely to have acquired Rights of Light. Prescription is the most common way of acquiring Rights of Light and is often known as ‘the 20 year rule’.

It is not always easy to identify who has a Right to Light particularly if there have been historic changes to surrounding buildings, such as, the removal or replacement of windows. A Rights of Light report obtained at the planning stage, from a RICS regulated Rights of Light surveyor, will identify which of the surrounding buildings may have rights over the development site. Using a three-dimensional model of the site and surrounding context, the surveyor will be able to advise whether there are any potential Rights of Light infringements caused by the proposed development.

The Rights of Light Act 1959

Rights of Light acquired through prescription can be defeated if, before the expiry of 20 years, the light is continuously obstructed for one year. The Rights of Light Act 1959 provides a mechanism by which a landowner can serve a Light Obstruction Notice (‘LON’) to prevent surrounding properties from acquiring Rights of Light.

The LON is registered as a local land charge and operates as a notional obstruction. If there is no objection to the LON within 12 months, the Right of Light is deemed to have been interrupted, and the prescriptive period is reset to zero.

The LON avoids the need to physically obstruct access to light, which could create tension with surrounding landowners and is a useful tool to developers to flush out any potential Rights of Light claims from surrounding properties.

It is important to note that Rights of Light are not connected to the planning system. They can still prevent development even if planning permissions have been obtained and, therefore, can cause real problems with land that has been purchased for its development potential.

Enforcement of Rights of Light

The usual remedy is a claim in nuisance for damages, but in some instances, an injunction may be sought if the Rights of Light infringement is particularly egregious.

The test for infringement is whether the obstruction constitutes a nuisance and that is whether the light retained is sufficient for the comfortable use and enjoyment of the building according to the ordinary notions of mankind. It is not about guaranteeing direct sunlight but rather protecting a minimum level of natural light deemed necessary for the comfortable use of a property and the level of light may vary depending on the property’s use and location such as a residential living room or a warehouse.

Deed of Release of Rights of Light

Many Rights of Light disputes are resolved through negotiations which could involve financial compensation or possibly modifications to the proposed development. This gives the parties flexibility to agree a mutually beneficial settlement rather than a Court imposed resolution.

The parties will usually enter a Deed of Release of Rights of Light which extinguishes the Rights of Light by reference to the development, and which is registered at the Land Registry against each of the parties’ titles.

Avoiding pitfalls

Developers who commence work in the knowledge of potential infringements are taking a risk. It is in the Court’s discretion whether to order injunctive relief but if the Court considers that a Claimant cannot be adequately compensated by damages in lieu, it may well consider granting an injunction.

Conclusion

This is a complex area of law which seeks to balance the rights of landowners against the need for development. If a site is being purchased for its development potential, we recommend a thorough investigation of any potential Rights of Light infringements on surrounding buildings, to identify risks and consider solutions which will ensure the smooth running of the project.

If you would like to discuss in more detail the contents of this piece, please contact our Specialty Claims Team at professionalandfinancial.lines.newclaims@uk.zurich.com or if you would like to hear how our Legal Indemnities team can support you, please contact Legal Indemnities at zurichli@uk.zurich.com - who would be delighted to hear from you.