Developers and property owners should be aware of recent recommendations which seek to radically reform the law surrounding the so-called ‘right to light.’
A right to light is an entitlement for a property owner to receive light into their property (usually through windows) across a neighbour’s property.
If a property owner establishes a right to light (usually after 20 years’ uninterrupted enjoyment) they can prevent their neighbour, such as a developer, from substantially interfering with the right. This may be, for example, by constructing a building on the neighbouring land which blocks the light.
Developers have been concerned that property owners were able to hold out for large ‘ransom’ payments due to the threat of being able to obtain an injunction from a court which would prevent the development from proceeding or even require demolition.
The Law Commission – the independent body which reviews laws and recommends reform – has now produced a report and a draft Bill which aims to bring clarity to the law and which is likely to lead to less injunctions being granted in the future.
David Bailey, Commercial Property Litigation partner at Napthens solicitors, warns that while the current law allows for a development to be halted or stopped entirely if the law is breached, predicting when a court will order this as opposed to compensation is very uncertain. This helps neither the developer nor the property owner.
He said: “The proposed changes are to be welcomed in my view. There are two main initiatives in particular which will have the greatest impact.
“First, there will be a statutory ‘proportionality’ test to determine whether a court should award damages as opposed to an injunction. This is a checklist of factors which the court must look at in each case to weigh up the competing interests of the developer and the property owner. “However, the Law Commission recommended that a court should not grant an injunction if to do so would be a disproportionate way of protecting the rights of the property owner.
“Another change would mean that if affected neighbours want to claim an injunction they only have eight months to do so from receipt of a notice from the developer – a so-called ‘put up or shut up’ notice.
“The ‘right to light’ has been a controversial topic in recent years as courts have tried to balance the importance of building projects such as new home building, with the rights of existing property owners.
“Developers, property owners and their advisors should keep a close eye on this area of the law in 2015.”