Lease Restricts Right to Light

The law regarding the right to light is sometimes complex, but the right is one which can be claimed pursuant to Section 3 of the Prescription Act 1832. This provides that where there has been actual enjoyment of continuous light for 20 years, a right to light can be acquired – even without written consent or agreement. The decision in a recent case, in which the right to light was claimed by a tenant citing the Act, will be greeted with relief by developers.

The case concerned land that had been bought in 2001, having been originally conveyed by the local council, on a 99 year lease, in 1975. The claimant had acquired neighbouring land in 1989.

The lease provided that the landlord retained ‘the full and free right to erect build rebuild and/or alter as they may think fit at any time and from time to time any buildings or bays or projections to buildings on any land adjoining the demised property and/or on the opposite sides of the adjoining streets and access ways…provided always that nothing herein contained shall operate to grant by way of implication or otherwise…any estate right or easement…by the lessor over or in respect of any land retained by or belonging to the lessor…’.

The defendant decided to develop the adjacent land and the tenant claimed that the proposed development would restrict its right to light. It argued that a right to light had been acquired over the adjoining land by prescription, pursuant to Section 3 of the Act, because the tenant had enjoyed continuous light for 20 years without written consent or agreement. The defendant did not contest that fact, but argued that the reservation of the right to build in the lease referred to above prevented the tenant from acquiring the right to light.

The court agreed with the defendant, distinguishing between clauses that deal with the position as it exists at the date of the lease (which would operate to prevent the creation of the right to light and similar easements over the land) and those which deal with future events, which would prevent the creation of easements. The former would need to be specified. With regard to the latter, the exact type of restriction need not be specified, so the failure to specify that the right to light was specifically restricted did not limit the landlord’s right to develop the adjacent land where the right to build on the land was reserved under the lease.

Although the lease did not specifically refer to the enjoyment of light, the other provisions prevented the right from being acquired.

RHJ Ltd. v FT Patten (Holdings) Ltd. (2008) All ER (D) 161 (Mar). See http://www.bailii.org/ew/cases/EWCA/Civ/2008/151.html.

Telephone: +44 (0) 1753 486 777 (Slough Office)
Telephone: +44 (0) 1189 596031 (Reading Office)