A right of light is the ability to enjoy the natural light that passes over land belonging to another, such as a neighbouring property, through the windows, sky lights and glass roofs in or on a property – often referred to as apertures.
There is no automatic right to light but, if established, this right entitles a person to receive sufficient natural light through a property’s apertures. These rights may be acquired by way of long use and enjoyment, but this enjoyment must be uninterrupted and continual.
It is essential that these rights are considered prior to acquisition of a site intended for development, which is aptly demonstrated by previous cases. In one particular case, a land owner succeeded in obtaining an injunction against a developer who was held to have infringed the land owner’s right of light, despite the development having already been completed! More interestingly, the property affected by the infringement was a commercial property and so this issue is not limited to residential property.
It is important to note that rights of light do not protect an existing view enjoyed by a property. They also do not entitle a land owner to the same amount of light as that which was enjoyed before the relevant obstruction occurred. Therefore, in determining the amount of light considered reasonable, it will depend on what is sufficient for the “ordinary use” of the affected property, for example. This is a question of fact.
It is also possible to lose a right to light that has been acquired by prescription if no steps are taken to challenge an obstruction within a particular period of time, or to protect such a right. Therefore, unless active steps are taken to challenge an obstruction promptly, it may be that any rights (if proven to be in existence) can be lost. Rights of light are not absolute and can be lost if not protected.
If a right of light is established, the owner of the land causing the interference may be liable to pay compensation for the infringement. Again, this is a question of fact for the Court and a number of factors will be taken into consideration in determining whether compensation should be paid to the affected party. As such, there is no automatic right to compensation.
Consequently, rights of light can be of concern to a developer, particularly where a proposed development is beside or near to existing property or buildings. For developers and their lenders, an existing right to light may involve additional considerations when determining the layout of a development, or even whether to proceed.
Therefore, when a developer is considering the development of a particular piece of land, it is vital to consider whether these rights exist and the impact that this may have upon a proposed development before purchasing the land and commencing work. As part of the acquisition process of the land earmarked for development, it is essential that the property is investigated and due diligence undertaken to determine if this may be an issue before it arises. A developer should also take specialist advice from a surveyor in relation to any concerns it may have in relation to rights of light and the likelihood of any infringement, whether potential or actual.
Mr and Mrs Scott attempted to obtain an injunction requiring their neighbours to reduce the extension that they were building in size so as to not block their light. The Court ordered at trial that an injunction was inappropriate so the neighbours could keep their large extension. However, the judge awarded damages of £31,499. The judge took into account that the windows which would have reduced light were in fact a garage/workshop, a bathroom and a utility room and therefore the judge took the view that the reduction in light would not have a significant effect on Mr & Mrs Scott.
Mr and Mrs Scott had in fact argued that they should be entitled to a share of the value of their neighbours’ property insofar as it was increased by the very large extension and this would have given a much higher figure in damages.
The case is therefore of assistance to developers in potentially limiting their liability if they do breach a neighbouring property’s right to light.
In this case, Beaumont Business Centre had acquired a right to light via a deed rather than by long user. The case followed Scott v Aimiuwu (2015) and emphasised that damages are a question of fact but that a right to light deed which provided for financial compensation if the terms of it were breached, would not prevent the seeking of an injunction. The case therefore supports the preservation of a right to light claim.
Any land owner wishing to develop their land either by extending an existing building or building an entirely new building, must be aware of neighbouring properties and the fact that they may have a right to light. A right to light is known as an easement, it can be specifically granted in conveyancing documents or it can be acquired by prescription (long user). Builders and developers must therefore consider carefully surrounding buildings when considering their plans so as not to infringe neighbours’ rights of light.
It is worth again emphasising that the right to light is completely different to a right to a view. There is no legal right to a view unless one has been specifically created by conveyancing documents, which will be most unusual.
Pinney Talfourd have expertise in this area and work closely with specialist surveyors who can assess the effect on buildings or proposed buildings on a client’s right to light. These cases are unusual; hence specialist legal advice is critical.
If you are a commercial property developer contact our Commercial Property Litigation Team to discuss the factors that you may need to consider before investing in any works. As noted above, a right to light is also afforded to commercial properties.
If you are a residential homeowner contact our Residential Property Litigation Team to discuss any issues around development on your land or any work carried out by neighbours. It is important to do this at the earliest stage in the development as possible.
This article was written by Stephen Eccles, Partner at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2019.