Developers Beware – Consider Rights of Light issues as early as possible or pay later

A right of light is a legal right to receive uninterrupted light which passes over someone else’s land into an aperture such as a window.

Early consideration of rights of light is essential for developers to avoid potentially catastrophic issues arising later. This is because, if a neighbouring owner has a right to light and the path of that light is obstructed by your development, then that may be actionable through the Courts and you are at risk of the court ordering you to (1) pay damages as a financial penalty or, in extreme cases, (2) remove, or cut back, that part of the building which causes the obstruction.

You therefore need to act swiftly in obtaining both legal advice as well as advice from a rights of light surveyor at the earliest possible stage and bear in mind the following:

1. Right of light issues impact both commercial and residential buildings. They can also impact the refurbishment of an existing building where an extension or additional floors are being added, as well as the construction of a new building. Therefore just because a building does not currently interfere with rights of light, does not mean it will not in future.
2. The most common way of acquiring a right of light is through 20 years’ use and so older neighbouring buildings may have rights of light, but these rights may have been lost by relocating or covering over windows. Equally, newer buildings may still have rights of light where the windows are in the same place as the previous building on the same site. A detailed analysis is therefore required.
3. Rights of light are separate to daylight/sunlight and are not considered in the planning permission process. This means that rights of light must be considered even where planning permission for development has been granted.
4. It is dangerous to assume that a court will not order a cut back of part of a building once construction has been completed. In a case in 2020, the court ordered a cut back of a property completed two years earlier in 2018. You can read our blog on this case here.

As set out above, there are various issues at play which require careful consideration. We assist developers and landowners by undertaking title reviews to check for any hidden rights in title deeds, assess the risks, work with rights of light surveyors to establish where there may be actionable losses of light and advise on strategy going forward in order to minimise, if not altogether eliminate, the risks of building disruption or a cut-back. We also defend rights of light claims made by neighbouring owners.

Should you need any advice in relation to rights of light, or indeed any property related dispute, please do not hesitate to contact our Property & Trusts Litigation team.

 

If you aren’t receiving our legal updates directly to your mailbox, please sign up now