Common misconceptions: who has a right to light?
As the sun comes out of its winter hibernation, it becomes more noticeable whether the light to a property has been, or might be, affected by a new building or development.
A landowner may benefit from a right to light which, if established, gives the right to receive natural light through defined apertures in a building (e.g. a window) on their land. Where one piece of land benefits from a right to light, another piece of land will be burdened by that right, and the owner of the burdened land cannot substantially interfere with the right to light without the benefitting owner’s consent. If they do, the benefitting owner can seek a remedy through the Courts, including an order that the relevant building works are changed, or the Court may decide that the benefitting owner should be compensated.
Do you know whether you have a right to light, or if your new or proposed building works have affected, or could affect, someone else’s right to light? Whilst many people are aware that rights to light exist, there are some common misconceptions.
All landowners have a right to light
A right to light is not automatic and can be established by grant or statute, but is most commonly established through the benefit of having uninterrupted light for 20 years (known as prescription).
This right to light is not absolute and can be released, abandoned or extinguished if:
- the parties reach an agreement to do so;
- there is a physical obstruction to the light for one year;
- the land benefiting from, and being burdened by, the right are owned by the same person;
- if a light obstruction notice is registered for one year without challenge; or
- if the apertures in question are altered or demolished.
Leaseholders/tenants cannot acquire rights to light
A leaseholder or tenant can acquire a right to light by:
- acquiring the freeholder’s right to light that accrued, before the grant of the lease, under section 62 of the Law of Property Act 1925 (which in effect passes to the leaseholder all benefits enjoyed by the property) unless the right to light is specifically excluded or reserved to the freeholder; or
- establishing its own right to light during its occupation of the property, unless such right has been reserved to the freeholder.
So it is important to review the relevant lease to check (i) whether the potential right to light is excluded or reserved and (ii) for any provisions affecting the leaseholder’s ability to manage its right to light.
Planning permission has been granted, so there is no right to light
Once planning permission for a development is granted, it may no longer be a planning issue, but a private right to light may still exist. It is therefore good practice for developers to adopt a right to light strategy, as part of their development plans, which may include:
- proactively reaching out to any affected parties to start negotiations;
- issuing light obstruction notices;
- whether to use section 203 of the Housing and Planning Act 2016 to override any right to light; or
- obtaining an insurance policy.
If a right to light strategy is not in place, and a developer proceeds with works that cause an obstruction, they are at risk of being required to change the development or pay compensation.
If you think you may have a right to light claim, or you are worried that your own building works may (or do already) affect another party’s right to light, you can speak to:
- a solicitor about what to do next; and
- a specialist right to light surveyor who can investigate the impact of the works on the relevant property.