Rights of Light - Information from Fladgate Fielder, Solicitors - www.fladgate.com

Rights of light are a distinctive and complex branch of the Law of Easements. In any proposed development, it is vital that investigations are made to ensure that adjoining owners do not have rights which may prevent building as planned.

Rights to light issues often arise in the re-development context. The purpose of rights to light is to protect the light received through windows in existing buildings from unreasonable interference by new buildings. Unlike other rights, rights to light can come into existence through twenty years' actual use, whether or not as of right, unless they are exercised by written permission. Such rights are, for Land Registration purposes, overriding interests and therefore are valid whether or not they are registered on the titles to the property which claims the right, or on that over which the right is claimed.

The emergence of claims for rights to light over their land in favour of nearby buildings can, therefore, come as an unwelcome surprise to a land owner, especially if his development project is under way.

The law stipulates that a building with openings is entitled to "adequate light for the ordinary notions of mankind". Most buildings obtain rights to light as a result of the Prescription Act of 1832, after twenty years' uninterrupted enjoyment. The other major way of obtaining a right to light is by an express grant or by an express reservation, which would be discernible from the title deeds. However, there is one essential point to bear in mind, and that is a right to light can exist only in favour of defined apertures in buildings. There is, therefore, no right recognised by law to receive light falling on unbuilt land.

It is, however, possible to prevent a building obtaining a right to light by instigating the procedures under the 1959 Rights of Light Act. The act operates by allowing the creation of a notional obstruction of light received by a building over the land of another. The owner of the site in question notifies all those around the site that he has erected a 'screen', normally of infinite height, in front of their windows and the owners, served with such a notice, have a year to respond if they want to object.

Generally, in prescriptive situations, it is accepted practice that, provided a developer ensures that any room of an adjoining owner has more than fifty per cent of it lit to an adequate level, then it is likely that compensation will be an adequate remedy. It is usually only when a developer constructs a building which is likely to take more than fifty per cent of the light away from a room that injunctions come to the fore.

It is impossible to know what stance an adjoining owner will take, but generally in the market place most adjoining owners are prepared to settle for compensation, especially where these may involve significant sums. It is, however, important to remember that a developer is not able to rely on an adjoining owner simply taking money and, furthermore, where residential property is concerned, it is clear that Judges are inclined to side with the adjoining owner whose light is damaged, particularly where a developer can be seen to be making a profit from the scheme. It would appear from the cases that even rooms lit to fifty five per cent may not, in those cases, be adequately lit.

The other main weapon of an adjoining owner is, of course, an injunction. Four tests have been set down in an 1895 case which should guide a developer. These are, is the injury to the Plaintiff's legal rights small, is it one which is capable of being measured in money, is it one which can be adequately compensated by a small money payment and is it a case in which it would be oppressive to the Defendant to grant an injunction?

The answers to these questions are somewhat subjective, but increasingly courts are favouring injunctions rather more than in the past. This seems to be because society nowadays generally has more concern for environmental conditions and protecting the quality of life. Threats of injunctions are, of course, of serious consideration to a developer, who may be forced either to re-design or abandon a project.

The law provides various remedies in respect of infringement of right to light.

- Abatement, which involves the physical removal of the structure which interferes with the light to which the aggrieved party is entitled.

- Damages at common law for nuisance, which are normally awarded to compensate the Plaintiff for wrong done. The basis measure of damages for injury to land caused by nuisance is the diminution in the value of the land.

- Interim Injunction, which is, in essence a holding operation until the action is heard at trial.

- Final Injunctions. At trial, in deciding whether the appropriate remedy is damages or an injunction, the courts apply the principles set out in the case mentioned above, and if the court can answer positively in respect of each of the tests, then damages will be granted.

- Damages in addition to or in lieu of an Injunction. Declaratory relief which may be appropriate where it is important to establish the parties' rights for the future, for example where disputed questions relating to a rights to light Deed have been resolved, or where disputed questions as to whether such rights have been lost by abandonment or delay have been resolved.

There is, however, another factor to be taken into account, that the level of compensation is not necessarily worked out as a basis of the area of the adjoining owner's property which loses the light. Since 1986, the affected adjoining owner takes as his compensation a part of the profit which the developer will earn from now being in a position to erect additional floors on his property. Sometimes this results in a 50/50 split. If a developer has any inkling that an adjoining owner is likely to injunct, this approach must be taken into account, since the amount of compensation could be substantial.

Again, when assessing this kind of problem, it should also be remembered that not only would a freeholder be affected by such loss, but also any occupiers of the building who hold under a lease, and each of those might be involved in sharing the sum awarded or agreed, depending on the terms of their leases.

Rights of light - Legal issues

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