Can you have a right to light?
I have lived in Manchester for years (more than I care to admit) and during that time the skyline has drastically changed. The current skyline is saturated with high rise buildings, some built quite close together and with new high-rise buildings being added constantly. In view of the same I am being instructed on more and more cases involving rights to light.
What is a right to light? Can you have a right to light? This isn’t an easy yes/ no question. You can have a right to light. The right is usually acquired one of two ways, either by express right (as granted by your title/ title deeds) or via Prescription. There are other ways in which the right can arise but in the main these are the two most common ways.
A right of light is a type of easement; it is a right enjoyed over land belonging to someone else (the servient land) that benefits other land (the dominant land). Although a right of light satisfies the requirements to be an easement, rights of light have evolved in an unusual fashion and have some differentiating factors to other easements.
A right of light is an easement to enjoy the natural light that passes over someone else’s land and then enters through defined apertures in a building. Apertures include windows (with or without glass), skylights and glass roofs.
Once established, a right of light entitles the beneficiary to receive sufficient natural light through the aperture to allow the room or space behind the aperture to be used for its ordinary purpose. The result of this is that rooms used for different purposes will be entitled to receive different levels of light. To illustrate, a greenhouse requires more light than a storeroom.
Consequently, it is not sufficient to show that there has been a reduction in the amount of light available, the loss of light must amount to a nuisance. To establish a nuisance, the claimant must prove that its property has been made substantially less comfortable and convenient than before due to the reduction in light. Even if the building was already badly lit, it is still a question of determining if the reduction in light, from whatever level it may have started, has caused a substantial interference with the claimant’s reasonable enjoyment of the property.
A right of light has limitations that restrict its scope. There is no right of light in respect of land that has not been built upon. Therefore, undeveloped land cannot acquire or benefit from a right of light across other land. There must be a building on the dominant land, which benefits from the access of light.
There is no legal right to direct sunlight. The right is for sufficient natural illumination, not to direct sun rays.
Rights of light do not protect views nor do they protect a property from being overlooked, in similar guise they do not safeguard privacy.
A right of light is not an entitlement to receive the same amount of light to that received before the obstruction arose. The light levels can be reduced provided what is left is sufficient for the ordinary and normal use of the room in question.
The ways in which a right of light can be acquired are predominantly the same as for other easements. The main differences are found in the Prescription Act 1832. (“the Act”). In fact most cases in relation to right to light fall unto the Act.
By virtue of Section 3 of the Act a right of light can be acquired, if the light has been enjoyed for 20 years, next before action and without interruption, the right is deemed absolute and indefeasible unless the right was enjoyed by written consent or agreement.
Next before action means that the period of use is calculated back from the date on which the action challenging or asserting the right was begun. Even if oral consent has been given that will not preclude a claim under the Act.
There must simply be actual enjoyment as of fact and only a written consent defeats the claim. In this respect, rights of light differ from other easements claimed by prescription.
So, in a nutshell if you have enjoyed the light coming through your windows for a period of at least 20 years you have likely gained a right to light. This is a complex area of law and each case will turn on its own facts.
If you think you have a right to light or you believe your right is being impeded, please contact our corporate team at [email protected].
