If you are a commercial landlord, this recent case on a right to light should be of interest.
The case of Metropolitan Housing Trust Ltd v RMC FH Co Ltd related to a block of flats in London. Windows in the flats enjoyed the flow of light passing across land on the other side of the street. Across the street, a developer intended to build two mixed-use buildings which were deemed to interfere with this flow of light.
The case was brought by the head tenant against the freehold owner of the existing block of flats. The head tenant wanted confirmation that it was entitled to permit the developer to obstruct the flow of light. The freehold owner defended the claim on the basis that the tenant would breach its lease if it gave this permission.
The lease clause in question stated that the tenant was "not to give permission for any new window, light opening, or other encroachment to be made nor to permit 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 issues the Court needed to decide were:
Was the tenant's release of the right (by giving permission to the developer) an encroachment?
Would this encroachment result in damage, annoyance or inconvenience to the freehold owner?
Was any right of light part of the demised premises?
Was any interference with the right to light by the developer an 'encroachment' upon or against the demised premises?
The Court held that the right of light was part of the demised premises, although the right did not exist at the date of the lease. The right came into existence 20 years later via the Prescription Act 1832. As a right of support was included in the definition of the demised premises, the parties had clearly not intended that the premises should only include physical items. According to case law, where the land enjoying a right is subject to a lease, then use of the land by the tenant can eventually lead to the acquisition of an easement which attaches to the freehold. As part of the freehold, it forms part of the premises demised to the tenant.
As the demised premises included the right to light, giving permission to the developer to interfere with it would be to permit an encroachment upon or against the demised premises.
The encroachment would result in a reduction in the light to the premises. As the freeholder would either have to take action itself or force the head tenant to take action to prevent this, the encroachment would result in damage, annoyance or inconvenience to the freehold owner. The head tenant's application was therefore dismissed.
However, the Court held that if the freeholder had itself released the right to light, then the head tenant would not breach the lease if it also went on to release the right since its doing so would not result in damage, annoyance or inconvenience to the freeholder.
Although each case turns on its own facts, landlords will be reassured to hear that tenants in these circumstances cannot release rights granted under their leases in order to make a quick profit. Particularly in cities where space and light are scarce and in competition, this case is important in ensuring that landlords maintain the value of their assets.
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A right to light may be acquired by ‘anyone who has had uninterrupted use of something over someone else’s land for 20 years without consent, openly and without threat, and without interruption for more than a year.’