Rights of light may not be a subject to worry most homeowners, but a recent article in the Daily Telegraph gave the impression that this was yet another hallowed property right under attack from the government.
The subject of the article’s wrath is a consultation paper just published by the Law Commission, looking into the way the law relating to rights of light operates at present, and suggesting possible amendments. The Commission is a statutory independent body to keep the law under review and to recommend reform where it is needed.
Rights of light are just one of many rights which can benefit properties; these are known to lawyers as easements. An easement is generally a right to do something on neighbouring property for the benefit of your own property – common examples are rights of way, or the right to connect into drains in a neighbour’s land.
A property can also benefit from rights of light – that is, a right to receive, usually through a window, enough of the natural light passing over a neighbour’s land to enable the ordinary use of the building. Perhaps a better way to put this is that a property may be entitled not to have light to its existing windows blocked by a new building or other obstruction on neighbouring land.
The law relating to rights of light is very complicated, and much of it relies on old cases. As with other easements, rights can be acquired by long user – this is known as prescription, and generally a period of twenty years use is sufficient to create a legal easement. But the problem for landowners is in knowing whether their property is subject to rights which benefit a neighbour’s property.
Rights which have been acquired by prescription are not generally set out in title registers. This means that Conveyancing Solicitors cannot tell buyers whether their property is affected by any such easements.
One of the difficulties which landowners face is being able to tell in advance exactly what effect a new building will have on light to windows in existing adjacent buildings. Specialist surveyors can make calculations, and indeed the science of measuring light is now much more extensive and accurate that when many of the old legal cases were decided. But until a new building is actually in place an adjoining owner cannot see the precise effect.
This has caused problems for landowners who want to extend or re-develop their property. A landowner is not obliged to say whether or not he claims any rights of light beforehand, but can wait until building work has been started or even completed before initiating legal action. In a major case a few years ago the judge granted a mandatory injunction requiring the removal of the top two floors of a completed development.
Even when the court is not prepared to order the demolition of a building it can order a developer to pay substantial damages, which will affect the cost of a development.
Concerns have been raised for some years that the existing law is so complicated that it is preventing new developments, especially in city centres. Some developers also think that landowners are using the existing law merely as a means of extracting money from them to buy off potential claims.
The Law Commission published an extensive report on easements last year, and indicated at that time that it would look further at the law relating to rights of light. It’s latest consultation paper provides a very thorough review of the present law, and raises several points for further discussion.
This paper suggests various alterations to the law. The main proposal is to abolish the method of acquiring new rights of light by long user. It points out that this doctrine of prescription has either been abolished or never existed in many other countries with similar land law to England, such as Australia, New Zealand and the USA. However it has not proposed depriving owners of existing rights.
The Commission is also proposing other amendments including
- a new statutory notice procedure, which would require those with the benefit of rights to light to make clear whether they intend to apply to the court for an injunction (ordering a neighbouring landowner not to build in a way that infringes their right to light), with the aim of introducing greater certainty into rights to light disputes.
- a new statutory test to clarify the current law on when courts may order a person to pay damages instead of ordering that person to demolish or stop constructing a building that interferes with a right to light.
- landowners should be able to apply to a tribunal which would be able to extinguish rights to light that are obsolete or have no practical benefit, with payment of compensation in appropriate cases, as it can do under the present law in respect of restrictive covenants.
The Daily Telegraph article gave the impression that these proposals are government policy and created a charter for developers to ride roughshod over the rights of other landowners. However the Commission points out that these are only its own proposals, and it invites anyone concerned to send in comments to [email protected].
In practice many Law Commission reports just get ignored or forgotten, and even when the government accepts the need for a change in the law it is often years before legislation is introduced. So it is unlikely that we will be seeing changes to the law on rights to light for some years to come, if at all.