If rights of light exist, who can release them?
Claims to rights of light can have a significant effect on a development scheme, especially if buildings that benefit from rights of light are occupied by tenants. In addition to dealing with the rights of the freehold owner, the developer will need to deal with their rights too. Metropolitan Housing Trust Ltd v RMC FH Co Ltd [2017] EWHC 2609 (Ch) concerned a mixed-use development in London involving the construction of buildings of between three and 15 storeys high. The freeholder and the headlessee of an adjoining building took the view that they each enjoyed prescriptive rights of light over the development site, and that the development would interfere with them.
The headlessee was prepared to release its rights in return for a monetary payment. But the freeholder took the view that this would constitute a breach of a provision in the headlease prohibiting the headlessee from allowing “any new window light opening doorway path passage drain or other encroachment to be made” or permitting “any easement to be acquired upon or against the demised premises which might be or grow to the damage annoyance or inconvenience of the landlord”. The developer was not a party to the proceedings and the judge had to consider several points of law in order to decide who was right.
Both parties claimed that the rights of light came into existence after the grant of the headlease by reason of section 3 of the Prescription Act 1832. Did this mean that there were two separate rights of light, one of which was appurtenant to the freehold and one of which appurtenant to the headlease? The judge ruled that any rights that had been acquired were appurtenant to the freehold and were to be treated as part of the demise (even though the headlease was granted before the easement was acquired). Importantly, therefore, any rights of light formed part of “the demised premises”.
Claims to rights of light can have a significant effect on a development scheme, especially if buildings that benefit from rights of light are occupied by tenants. In addition to dealing with the rights of the freehold owner, the developer will need to deal with their rights too. Metropolitan Housing Trust Ltd v RMC FH Co Ltd [2017] EWHC 2609 (Ch) concerned a mixed-use development in London involving the construction of buildings of between three and 15 storeys high. The freeholder and the headlessee of an adjoining building took the view that they each enjoyed prescriptive rights of light over the development site, and that the development would interfere with them.
The headlessee was prepared to release its rights in return for a monetary payment. But the freeholder took the view that this would constitute a breach of a provision in the headlease prohibiting the headlessee from allowing “any new window light opening doorway path passage drain or other encroachment to be made” or permitting “any easement to be acquired upon or against the demised premises which might be or grow to the damage annoyance or inconvenience of the landlord”. The developer was not a party to the proceedings and the judge had to consider several points of law in order to decide who was right.
Both parties claimed that the rights of light came into existence after the grant of the headlease by reason of section 3 of the Prescription Act 1832. Did this mean that there were two separate rights of light, one of which was appurtenant to the freehold and one of which appurtenant to the headlease? The judge ruled that any rights that had been acquired were appurtenant to the freehold and were to be treated as part of the demise (even though the headlease was granted before the easement was acquired). Importantly, therefore, any rights of light formed part of “the demised premises”.
The judge went on to rule that an actionable interference with the building’s rights of light would constitute an “encroachment” on such rights because an interference with a right falls within the ordinary meaning of the word “encroachment”. It was not necessary to prove physical entry onto the land demised. Logically, therefore, to grant permission for an interference would be to “permit” an encroachment. And, because any rights of light formed part of the demise, an interference with such rights would constitute an encroachment “upon or against the demised premises”.
The next step was to consider whether such an encroachment “might be or grow to the damage annoyance or inconvenience of the landlord”. Would it really damage the freeholder, if it could bring its own proceedings against the developer in respect of any actionable interference with its rights to light? The judge accepted that an encroachment would be potentially damaging because the freeholder would have to act quickly if the headlessee were to release its rights. Indeed, any lengthy interruption would significantly reduce or remove its ability to obtain an injunction requiring the restoration of its rights of light.
Consequently, the judge refused to make a declaration that the headlessee was entitled to release any rights of light appurtenant to the headlease. But, in his view, if the freeholder were to release its own rights of light, the headlessee could then release the rights of light appurtenant to the headlease without breaching the provisions of that lease.
Allyson Colby, property law consultant
