How intrusive is someone else’s development? Martin Gunson takes a new look at rights to light.
In 1991 I co-wrote an article summarising the legal position of rights to light acquired by prescription. Since that article (but, I hope, not because of it!) development activity, particularly in the City of London, has been sparse until recently. Tower cranes can now be seen all over London so rights to light is again an issue about which everyone should be aware.
The previous article focused on the position between adjoining landowners, but this article is aimed at tenants who may be aware of development on their landlord’s property or adjoining property, but are traditionally not consulted. It may be, however, that they should be involved.
Rights to light is colloquially the term used to describe not only the right to receive light but also restrictive covenants. The right may be acquired “by prescription” after 20 years’ enjoyment or created by deed, but a restrictive covenant can be created only by deed.
Position of a tenant
The position of a tenant will depend not surprisingly on the terms of his lease. Most landlords seek to deny the tenant any participation in rights to light which the landlord as landowner may enjoy himself. The landlord will seek to do this by one or more means.
Under section 62 of the Law of Property Act 1925 – unless a contrary intention is expressed in the lease – the demise is deemed also to include “all easements, rights and advantages whatsoever appertaining or reputed to appertain to the land or any part thereof” as exist at the date of the lease.
The tenant will therefore have as a matter of law the benefit of any rights to light to which the landlord is entitled, unless they are specifically excluded or modified by the terms of the lease.
Means of excluding participation
The landlord does this in one or more of the following ways:
a) by stating that the tenant is granted only those rights specified in the lease; or
b) by an exception and reservation to the landlord of all rights to light and air and the benefit of any rights which would otherwise be enjoyed by the tenant; or
c) by a specific agreement and declaration that the tenant is not granted any rights and that section 62 of the Law of Property Act is specifically excluded and/or the tenant has no rights other than those specifically granted; or
d) by the landlord reserving the right to interfere with the access of light and air to the tenant’s premises, which will not give the tenant any remedy.
Some typical examples of the wording used by landlords in leases are:
a) No implied easements
Nothing contained in this lease shall confer on, or grant to, the tenant any easement, right or privilege, other than any expressly granted by this lease.
b) Exception and reservation
Any rights of light, air, support, protection and shelter or other easements and rights now, or after the date of this lease, belonging to, or enjoyed by, any adjoining property.
c) Exception and reservation
Full right and liberty at any time after the date of this lease to raise the height of, or make any alterations or additions or execute any other works to, any buildings on any adjoining property, or to erect any new buildings of any height on any adjoining property in such manner as the landlord or the person exercising the right shall think fit and even though they may obstruct, affect or interfere with the amenity of, or access to, the premises or the passage of light and air to the premises.
Derogation from grant
The landlord in granting the lease is subject to this common law principle. This has been described as “the landlord must not seek to take away with one hand what he has given with the other” (Megarry & Wade). This concept has arisen out of a series of old cases. The obligation overrides any specific provision in the lease and has involved substantial interference with the light reaching a tenant’s window: see Coutts v Gorham (1829) and Cable v Bryant [8] 1 Ch 259.
Aim of the landlord
A landlord will exclude the tenant’s participation in rights of light so that he can without recourse to the tenant:
a) alter the remainder of his building or adjoining buildings that he owns; or
b) negotiate with an adjoining developer.
Landlord negotiating with adjoining developer
If the landlord has only prescriptive rights then arguably he is in a less valuable position unless the diminution which was caused by the proposed development would be substantial. The principle is that in most commercial cases the payment of damages will be an adequate remedy and the landlord will not be able to secure an injunction. If the landlord has the benefit of a restrictive covenant that would be breached by a proposed development then the question of degree is not relevant and this is therefore more valuable to a landlord in negotiating with the adjoining developer.
If the landlord has not excluded the tenant from participation in the rights to light that the landlord enjoys, the tenant is in the same position in dealing with the adjoining owner to the extent of the tenant’s interest. The tenant may also have a claim against his landlord if the landlord has come to a deal with the adjoining developer. The landlord would then be in derogation from grant, especially if the landlord purported to deal with the adjoining developer on behalf of its tenants.
Conclusion
Tenants rarely ascertain whether they have a right to object to adjacent development or participate in any negotiations with the adjoining owner. Where the diminution in light is significant then the tenant usually seeks to argue for a reduction of rent or no rent increase come the next review. Becoming involved and exercising rights to light may help the tenant to get a payment or do a deal with his landlord at the time of the development rather than waiting until the next review. With development now taking place again (and with plans for ever taller buildings!) this is potentially invaluable for the tenant to consider, especially if it has a long lease and the adjoining development may render the ability to dispose of the lease more difficult. This is a specialist area and a tenant would be well advised to consult a lawyer first and before any adjoining development is under way, let alone complete.
Martin Gunson is a partner and head of the property department in West End solicitors Reid Minty.
