Real Estate things you once knew but may have forgotten - Avoiding Rights of Light Disputes

United Kingdom

If you are constructing a new development one factor you need to take into account is its potential impact on the access of light (and air) to surrounding buildings. The most frequently encountered problem will relate to prescriptive rights to light claimed under the Prescription Act 1832. When the access of light has been enjoyed through a defined aperture continuously for at least 20 years, that right is deemed to be “absolute and indefeasible”.

So how does this impact on my development?

If the reduction of light is sufficiently great, the affected owner (which includes freeholders and tenants) may seek an injunction to prevent the infringement. This may stop you building or, at the very least, require you to cut back the extent of your development.

Injunction or damages?

If the Court decides not to grant an injunction, you may still have to pay damages. Damages may be awarded instead of an injunction if the injury to the rights is small can be adequately compensated by a small money payment and it would be oppressive to the developer to grant an injunction.

Methods of assessment are varied but they are usually either:-

  • a multiplier of 2.5 to 3 times the actual loss; or
  • a percentage of the developer’s profits made possible by the infringement usually between 5 to 15%, but anything up to 33% is possible.

Tips for Developers

  • Be aware of your neighbour’s rights from the outset. Obtain specialist rights of light advice from a surveyor and your lawyer as early as possible in the project.
  • Different strategies may be required for residential as opposed to commercial occupiers.
  • Consider the use of the light obstruction notice procedures. Under Section 2 of the Rights of Light Act 1959, a light obstruction notice may be registered as a local land charge against neighbouring property. If no one objects within a year of the registration, the prescriptive right will be lost. This procedure is useful on a number of levels to:
  • flush out potential objections to your development in plenty of time;
  • eliminate possible objectors if they fail to act within the requisite time; and
  • to prevent a building nearing 20 years of age acquiring prescriptive rights.
  • If an injunction remains a risk, remember that the courts look at the conduct of both parties when considering whether to exercise their discretion.
  • Always ensure that a compensation offer is put on an open basis. If the beneficiary expresses an interest, even if it does not accept the offer this is best evidence that the infringement can be adequately compensated by money.

If you have any questions concerning this summary or require any further assistance in relation to rights of light issues generally please contact Caroline DeLaney, a partner in our Property Disputes team on telephone number 020 7367 2329 or alternatively e-mail her at caroline.delaney@cms-cmck.com.