News
11 November 2008
Right to Light Claims- A Ray of Sunshine for Developers or a Gloomy Forecast ?
Easements often cause difficulties for property developers. An example of a potentially costly problem created by easements is the ability of property owners to claim a right to light, as demonstrated in a recent case.
A right to light is the right to receive sufficient natural light through windows, doors and skylights, to allow a building to be used for its ordinary purpose. This right may be expressly created, implied by law or acquired by prescription if it has been enjoyed by the occupier continuously for twenty years.
Rights acquired by prescription are the most dangerous for developers as unless the property owner has registered the right, the developer is unlikely to be aware of a problem until a claim has been made.
If a neighbouring building has acquired a right to light over land intended for development, the developer may be prevented from building and obstructing that right.
The occupier of an affected property can apply to the court for an injunction to stop development or amend the development to ensure the right is no longer infringed. Alternatively damages may be awarded.
A claimant, who has a right of light that can be protected by injunction, will more than likely be granted one by the courts. The injunction will stop a developer from building on the specified land and may require substantial changes to any buildings that are already erected.
The courts may consider awarding damages as an alternative, where:
- the developer can prove any injury suffered by the property owner is small;
- the injury can be estimated in money;
- adequate compensation can be achieved by a small payment; and
- it would be oppressive to the developer to grant an injunction.
Whilst a decision awarding damages means a development need not be delayed, or partly rebuilt, a calculation of the damages may not be in the best interests of the developer.
A recent case, Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007], provides an interesting example of the calculation of damages.
In this instance, the court decided an injunction would be oppressive to the developer and instead damages would be more appropriate.
The court held that damages will be based on the higher of the value attributed to the:
- loss of amenity suffered by the property owner; or
- the loss of the ability to obtain an injunction.
The value attributed to the loss of amenity suffered was estimated to be between £600 and £3,000.
However in Tamares, the court decided it was more appropriate to compensate the claimant for the loss of the ability to obtain an injunction.
In valuing compensation the court decided that damages should be a percentage of the profit that is likely to be achieved by the developer on the part of the development that infringes the right.
In Tamares the court decided the development profit was just under £175,000 and that one third of this profit should be awarded to the property owner. This award was reduced to £50,000 as the claim as modest. This £50,000 is a considerable increase on the value for loss of amenity!
Further, whilst the damages awarded do not appear to be large in comparison to the potential profit for the entire development, the circumstances of the case must be considered.
The property owner was not making a claim in respect of residential property, rather offices in London and the right to light was not enjoyed by the inhabitants of those offices. £50,000 was awarded because light would be blocked to a stairwell leading the basement, both of which were also artificially lit.
It is worth considering how much more might have been awarded had the claimant been a residential property owner claiming a right to light to his living room.
Advice for Developers
- Do not be complacent about infringing the rights of any party that has an actionable right.
- Seek specialist advice from solicitors and surveyors
- Consider an early strategy for minimising the risk of claims
- Determine at an early stage what parts of the development infringe rights of light in order to budget for potential claims and consider restructuring the development plan to avoid or minimise infringement.
- Consider serving Light Obstruction Notices which might stop rights being acquired or defeat rights which are already in existence.
- Consider whether a property owner has a right that could be protected by injunction. If not a small amount of compensation may be paid to reflect the loss suffered.
- Enter into negotiations with property owners to avoid potential claims.
- Do not push up the development schedule. Even if the development is finished the courts are still able to order demolition due to a breach of right to light and in addition the courts are likely to order a defendant to pay the costs of a successful claimant.
For further information on easements, including right to light, contact Elayna Smith on 01782 205 000.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published.Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances
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