16 February 2023 by Darren Coleran

How to deal with a right to light claim

When faced with a potential Right of Light claim, it is first necessary to determine how and if the property owner benefits from such a right. (See our previous blog on how a Right to Light is obtained)

Property deeds may limit or extinguish a property owner right to light over the development land and a lease may reserve the rights to light to the landlord. Therefore, it is important that all deeds and leases are reviewed on notice of a property owners claim, to determine whether the claim can be defeated at the outset.

A Light Obstruction Notice (LON) should also be served on the property owner, once plans have been finalised and the properties that will be affected by the development have been identified. This has the effect of notionally obstructing the light of the affected property to the extent set out in the notice. It will then defeat a property owners claim under the Prescriptive Act 1832, if the notice is registered for one year without challenge.

If it is determined that (1) a property owner does have a right to claim, (2) that there will be a substantial interference and (3) the property owner does not acquiesce to the release of their rights, a developer must:

  1. Obtain specialist surveyors advice on the degree of interference and the likely quantum of damages; and
  2. Consider whether Right of Light insurance is possible to cover costs of litigation, damages etc. of any affected persons with rights of light over the development.

Following the above and consideration on whether time has elapsed for the property owner to bring a claim (See our previous blog on how a Right to Light is obtained) the parties should negotiate a deed of release for an amount of compensation to be calculated by the parties right of light surveyors.

Once an amount of compensation has been agreed between the parties, it will be for the developer’s solicitors to circulate the first draft of the Deed of Release.

When drafting and negotiating the Deed of Release, it must be ensured that all necessary rights are being released to allow the development to proceed whilst taking into account whether there are any other parties that have an interest in the property that must give consent (e.g. the property owners mortgagee or a landlord). The developer will also have to pay the reasonable legal and surveyor costs of the property owner for entering into the Deed of Release.

If you require assistance or would like to talk with one of our expert Solicitors, then please do not hesitate to contact our Real Estate Disputes team.

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