Most developers will agree that natural light is a desirable quality in any property, one which can improve the wellbeing of the occupiers and even increase its value. The significance of natural light is therefore recognised in law as a “right to light”.
Not every home owner or tenant automatically has a right to light, however, many developers assume that, if they successfully obtain planning permission, no issues can ever arise.
In fact, a right to light can be acquired regardless of whether a development has planning permission, including by any property occupier who enjoys light, uninterrupted, through an opening for 20 years or more. Rights to light can also be granted, meaning any building can be encumbered, even if it’s a new build.
At Smooth Commercial Law, we work closely with developers, as well as their architects and surveyors, to assess the merits of claims made by neighbouring property owners that their rights to light will be infringed as a consequence of a development.
Our skilled right to light solicitors have extensive expertise advising in relation to all related matters, including designing around rights to light, the acquisition of rights, light calculations, defending and challenging legal claims for remedies such as injunctions and compensation, insurance, and compensation agreements.
Obstructing a right to light can have far-reaching impact on a development. For example, the long-term or permanent delays in construction, a reduction in the viability of the project, and, in extreme cases, the court may order demolition at the financial and reputational expense of the developer.
We can help you avoid right to light issues whilst maximising the potential of your development site. We’re happy to advise at any stage of the development, but early identification of potential issues is key. This helps mitigate the risk of abortive design or construction works and/or minimise the level of compensation payments made to neighbouring owners to relinquish their rights of light. We also advise clients as to whether they have acquired a right to light, or indeed any other type of easement, by prescription.
How can our right to light solicitors help you?
Our right of light expertise includes:
- Assisting with initial right to light risk assessments and title examinations
- Preparing, serving and registering Light Obstruction Notices as a means of preventing the acquisition of a legal right to light (this can also be used as a mechanism to identify rights to light which already exist).
- Providing advice and facilitating negotiations with neighbouring owners to agree terms of a release of their rights.
- Drafting deeds of release of rights to light and/or other easements following agreement of terms of settlement with neighbouring owners to relinquish such rights.
- Providing advice in right to light disputes, including compensation agreement negotiations and representation for injunction proceedings and compensation claims
Whilst we work to encourage a resolution to any claim, in the event it is necessary to take court action or defend injunctive proceedings issued against you, we will guide you through the court process and work hard to fight your case with force and tenacity.
What is right to light?
A right to light is a property owner or tenant’s entitlement to enjoy a reasonable amount of natural light through openings in their property (usually windows or skylights).
The interests of other relevant parties, including nearby property owners and the need for the development of new homes, mean that not everyone has an automatic legal right to light. However, anyone seeking planning permission needs to assess and evidence the effect their development will have on the surrounding area.
How do rights to light affect developers?
Despite being a key consideration for local planning authorities, successfully obtaining planning permission does not protect a developer from civil right to light claims.
As the name suggests, rights to light bestow an entitlement to make legal claims against anyone who infringes upon that right, including:
- Injunctions to temporarily or permanently halt the development
- Compensation claims
- Applications to force the development to be altered, cut back, or even demolished
How can someone acquire a right to light?
In England and Wales, rights to light are usually acquired under the Prescription Act 1832. A person acquires right of light by prescription when they enjoy natural light through an opening or ‘aperture’ such as a window or skylight for an uninterrupted period of 20 years.
Rights to light may also be granted expressly or by implication. Express grant is more common and usually arises when someone sells land and explicitly states that a right to light will be reserved by the new owner upon purchase. This grant is generally completed in writing in the form of a legal deed and registered at HM Land Registry, meaning all developers need to do to discover it is to undertake a Land Registry search.
What can developers do about rights to light?
Developers must consider rights to light as a key part of their due diligence prior to any development. We offer in-depth legal advice to developers and other stakeholders such as architects and surveyors in relation to right-to-light assessments in order to identify potential rights holders and take steps to avoid, mitigate, or compensate for light obstructions.
Developers have various options for addressing right to light issues, including:
- The Rights of Light Act 1959 – the developer can serve Light Obstruction Notices upon neighbouring properties informing them on the planned development. If the occupants of those properties do not challenge the development, they will lose any ability to claim a right to light
- Seeking to negotiate waivers with anyone who has an existing right to light
- Right of Light insurance policies which protect developers against the future possibility of claims
- Applying to the local authority to override any existing rights to light. This mechanism is used very rarely (only once negotiations have failed) and the developer may become liable to compensate the rights holders.
- Compensation agreements – although not ideal, if light obstruction cannot be avoided, it may be appropriate to enter into an agreement to pay compensation to any affected rights holders in order for the development to proceed
There are other ways a person may have their right to light defeated, including:
- Preventing its acquisition – if a person’s light is obstructed before the 20 year prescription period completes, they cannot claim a right to light
- Abandonment – if the owner of a building consents to not enforcing their rights or takes steps to ‘abandon’ their right such as blocking a window
Why choose our right to light solicitors?
At Smooth Commercial Law, we’re serious about achieving positive outcomes for our clients. Each member of our team is an expert in their field combining a high level of legal knowledge with significant commercial awareness and strategic acumen.
Our first goal will be to get a feel for your commercial goals and strategy and achieve an in-depth understanding of the opportunities, risks, and challenges surrounding your development plans.
When it comes to right to light, our ideal approach is to avoid and mitigate; we’ll work efficiently and productively to identify potential rights holders and remove the risk of any claims by legal means and by working closely with you and other interested parties in relation to your development plans.
Where issues have unfortunately already arisen prior to our instruction, we’ll seek to resolve any potential claims amicably, ideally without resorting to legal proceedings. However, if it does become necessary to go to court, we will fight your corner vigorously to defeat any alleged rights.
Smooth Commercial Law is independently regulated by the Solicitors Regulation Authority (SRA).
Contact our right to light solicitors today
Whether you’re a developer or an individual assessing whether you’ve acquired a right to light, we’ll be happy to assist.