Rights to Light

However, if a new development or building limits the amount of light coming in through the windows of a neighbouring building, and the level of light falls below the accepted level, then this may cause an obstruction and legal action may be possible against the developer.

 

This is why rights of light are becoming an important consideration for all concerned, especially since the court can require a developer to pull down an offending part of a building if an action is sought by neighbouring landowners in relation to light issues and the court finds in their favour.

Rights of light can be created expressly but developers should be aware that they can arise without being expressly created.

 

It is important from a developer’s perspective to ensure that due consideration is given to any rights of light which may have been acquired by prescription by any neighbouring building owners. Rights acquired by prescription are those rights to light enjoyed continuously for 20 years without consent or agreement.

 

In a recent case of RHJ Limited v FT Patten (Holdings) Limited, a neighbouring landowner objected to the development of adjoining land on the basis that the new development would obstruct their right to light.

 

The case demonstrated the importance of early action by developers who, in this case, served a light obstruction notice.

 

Once the notice has been served the neighbours have one year to assert their right to light.

 

If the notice remains unchallenged after one year the right to light is deemed to have been interrupted.

 

In order to claim prescriptive rights, the neighbouring landowners would have to enjoy the rights of light for a further 20 years in order to claim prescriptive rights. 

In this case, issues were brought into the open by the developer serving a light obstruction notice. The court found that there was a clause in the neighbouring landowner’s lease allowing the adjoining landowner the right to develop the land.

 

Even though there was no specific mention of a right of light, the court decided that a general clause allowing the right to develop adjoining land was sufficient to prevent the neighbouring landowners from acquiring a right to light over the land.

 

The court decided that the clause in the lease constituted a written agreement and therefore the neighbouring landowner had not acquired rights by prescription.