16 November 2017

Rights to light: Whose right is it anyway?

Establishing how many occupants of an injured building enjoy rights to light is not only fundamental to the formulation of developers’ rights to light risk management/elimination strategies, it is also a major consideration for those pursuing rights to light claims, who may not necessarily wish to share their compensation. 

The recent decision of Metropolitan Housing Trust Limited v RMC FH Co Limited [2017] EWHC 2609 (Ch) somewhat unusually considered a dispute between a landlord and tenant of an injured building as to which of them was entitled to enter into a rights to light release with a neighbouring developer.

The Court was asked to consider a provision in a lease which prevented the tenant from allowing “any new window light opening doorway path passage drain or other encroachment to be made” or permitting “any easement to be acquired upon or against the demised premises which might be or grow to the damage annoyance or inconvenience of the landlord.”

Did this prevent a tenant who had acquired rights to light from releasing those rights in circumstances where the freeholder had not already done so? 

The Judge decided that it did because the rights to light that had been acquired were part of the demised premises and the release was an encroachment upon them.

Practice points - key rights to light issues in a leasehold context:

1. Does the lease deal with “day 1” rights to light (i.e. those which have been acquired and could be passed immediately to the tenant)?

Look out for clauses:

  • Reserving rights to light to the landlord.
  • Excluding the implication of rights into the lease by section 62 of the Law of Property Act 1925.  These might expressly exclude the statute or state that the tenant is granted no rights beyond those expressly granted in the lease.

2. Does the lease prevent the tenant acquiring or asserting rights to light during the term of the lease?

Look out for clauses:

  • Reserving to the landlord the right to build on/develop any adjoining or neighbouring land as it pleases and/or to consent to the development of neighbouring land. 
  • Preventing the tenant from enjoying any light other than by consent of the landlord.

3. Does the lease manage or restrict the tenant’s ability to deal with rights to light and/or neighbours and/or easements generally?

Look out for clauses:

  • Preventing the tenant making any agreement regarding light without the landlord’s consent.
  • Requiring the tenant to inform the landlord of all notices such as light obstruction notices and of any attempted infringement of light coming into the premises.
  • Stopping the tenant from stopping up any windows.

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