With the increasingly popular trend for extensions and home improvements — rather than incurring the (sometimes prohibitive) costs of moving home — comes the increased risk of affecting or otherwise impacting on a neighbouring property’s right of light.
In this article, Rachel Ellison a senior paralegal at solicitors BTMK, considers a number of issues including:
- What is a legal right of light?
- How do you know whether a property benefits from a right of light?
- How do you stop your neighbours from acquiring a right of light?
Legal rights of light are unconnected to local authority planning considerations and, as such, won’t be considered by a local authority when deciding whether or not to grant planning permission for any development.
However, if your proposed development will impact on another property’s right of light then you may have to pay compensation to the affected property’s owner. In addition, an affected owner may try to obtain an injunction to prevent you from proceeding with the development.
What is a right of light?
A right of light is an easement to enjoy the natural light that passes over someone else’s land through defined apertures in a building, including windows (with or without glass), skylights and glass roofs. Once established, a right of light entitles the building to receive sufficient natural light through the aperture in question to allow the room or space which has such apertures to be used for its ordinary purpose.
How do you know whether a property benefits from a legal right of light?
Legal rights of light can be acquired in a number of ways, but it is also possible to prevent a right of light from being acquired in the first place.
Thus, the first step is to establish whether or not a legal right of light actually exists. Often we are able to establish very quickly whether a building does not enjoy a legal right of light over another building; in other words, whether the right of light has been expressly excluded from benefitting a property. Establishing whether a right of light has been expressly excluded is a matter of reviewing title documents for each property.
If a legal right of light is established (and has been or will be injured by a development) negotiations can begin between the developer and the owner of the affected building as to the “value” of the injury. Here you will need a specialist right of light surveyor, such as Right of Light Consulting Limited.
How do you stop your neighbour’s property from acquiring a right of light?
If you are considering developing your home but are worried about whether your neighbour’s property has a right of light over yours, it is sometimes possible to prevent that property from acquiring prescriptive rights of light. This is achieved by serving what is commonly known as a Light Obstruction Notice pursuant to The Rights of Light Act 1959.
The effect of such a notice is to allow the passage of light to be interrupted by a notional structure instead of a physical structure. Once the notice has been served, the Upper Tribunal (Lands Chamber) will issue a definitive Certificate under The Rights of Light Act 1959, and the Certificate is registered (against the neighbouring property) in the local land charges register of the relevant local authority.
Generally, a Light Obstruction Notice only needs to be considered when the neighbouring property’s windows have been in existence for nearly 19 years. A common misconception is that the notice needs to be served as soon as the neighbouring property is built in order to protect your position.
However, it must be remembered that the starting point for any right of light enquiry is the registers of title for the properties.
Tony Houghton adds: “This is a specialist area and it is best to seek advice from a legal experts, such as BTMK, and independent surveyors, including Right Of Light Consulting.”