Redevelopment of property could be hindered by neighbouring rights
HOW TO HANDLE DEEDS WITH RIGHTS TO LIGHT Question I own a building that is perfect for redevelopment. I know that rights to light can be used by neighbouring owners to hinder such redevelopments. I am concerned that this might be a problem because I have been told that a deed registered against my title refers to rights to light. What should I do? Answer The terms of the deed need to be checked by your advisers in order to ascertain whether the document affects yourability to redevelop your property. Your legal adviser should also carry out investigations concerning your property and relevant neighbouring buildings in order to determine whether there are any other potential rights to light issues. If appropriate, a rights to light surveyor can advise you as to whether any nearby buildings have acquired, or are in the process of acquiring, rights to light through prescription. |
EXPLANATION
The first step is to seek legal advice on the terms of the deed registered against your title because it is possible that the agreement may benefit your property. It is uncommon to find an express grant of a right to light, but historic transfers of properties formerly in the same ownership may contain provisions that allow the land retained by a seller to be redeveloped without interference. For example, the agreement may operate to prevent a neighbouring building from acquiring a right to light by prescription.
Prescriptive rights to light are acquired over a continuous period of 20 years’ enjoyment by virtue of section 3 of the Prescription Act 1832. However, this rule requires that the light must have been enjoyed without the written consent of the servient owner or anyone on his behalf. A transfer of building A will sometimes contain an express exception of the right to light in favour of building B. If it also contains a provision allowing the owner of the retained land to develop that land as he sees fit, this will be sufficient to constitute written consent for the purposes of section 3.
Provisions and investigations
The effectiveness of such provisions was confirmed by the recent decision in RHJ Ltd v FT Patten (Holdings) Ltd [2007] EWHC 1655 (Ch) [2007] 29 EG 143 (CS). In that case, a lease excluded any implied grant of easements to the tenant and reserved to the landlord a “full and free right” to build on adjoining land. The court held that these provisions were sufficient to prevent the tenant from acquiring a right to light through long user, even though there was no specific reference to light in the relevant clauses. The court distinguished between provisions addressing the position as at the date of the lease and those dealing with what might happen in the future.
It held that clauses of the first kind are effective only to prevent the creation of easements by express or implied grant they do not prevent the subsequent acquisition of a right to light by prescription. However, clauses concerning the future may prevent the acquisition of a right to light by prescription if they authorise interference with light.
Even if the agreement registered against your title benefits your property, the document may not apply to all nearby buildings, in which case you will need to obtain further advice. A legal adviser will be able to check for the existence of any other documentation relating to rights to light, either registered against your title or against the titles of neighbouring properties. Searches should also be made to identify other potential rights to light issues, such as a search of the land charges register against the names of previous owners, to ascertain whether there are any adverse D(ii) entries.
It is also worth checking with the local land charges register to see whether any light obstruction notices, under the Rights of Light Act 1959, have been registered by former owners of your property against neighbouring premises. These will help to confirm the position regarding any prescriptive rights to light enjoyed by nearby buildings. (The registration of a light obstruction notice against a property for a one-year period interrupts the acquisition of prescriptive rights.)
Occasionally, little or no information concerning neighbouring occupiers’ rights to light will result from these investigations. In this event, a rights to light surveyor can advise on whether nearby buildings are likely to have acquired rights to light through prescription. He or she should also be able to identify any buildings that are in the course of acquiring prescriptive rights under the 1832 Act. This can be crucial, since early detection of such buildings will allow you to register a light obstruction notice before any rights to light are acquired.
Development restrictions
It may transpire that the agreement registered against your property restricts your ability to redevelop it. A breach of this agreement would raise the risk of an injunction being granted to prevent or alter your redevelopment. In view of this risk, it is important to seek early advice on the effect of such an agreement, since it will be a question of construction as to how your plans will be affected. Agreements are often entered into by parties in order to allow a specific building to be erected within a certain “envelope”. If your property is subject to such an agreement, it will be necessary to find out how the deed affects future variations to that building, namely whether it restricts future building on the site to the same envelope as provided for in the agreement.
Emma Humphreys is an associate with Charles Russell LLP and Charles Morgan is a barrister at Enterprise Chambers
