Andrew Francis on fast action in rights of light claims. Andrew Francis is a barrister at 11 New Square.

You act for a client who has an interest in a large site in a city centre. What are you going to do when:



a writ is served alleging interference with the light enjoyed by an adjacent building;

a Light Obstruction Notice is served on your client;

the plans revealed on a planning application by an adjacent owner reveal a likely infringement of the light enjoyed by your client's building; or

an adjacent building has just been topped out and it infringes the light enjoyed by your client's building?



As with all other easement, rights of light require the same response if the right asserted is to be preserved or challenged. The writ, the injunction, and the claim for damages are there. But the easement of light has differences from its siblings, and these require care when handling claims to light, or defences against it.

For example:



subject to the term of his lease, a tenant can acquire rights of light against his own landlord by prescription, so challenges in defences in light claims may not just require freeholders to be parties;

a Light Obstruction Notice must be challenged by a writ within a year of its registration, even a temporary one, or it will be too late to claim prescriptive rights;

in the City, the custom of London will prevent the assertion of a claim based on Lost Modern Grant. If you have lost the benefit of the prescriptive period, you will be unable to assert the right; and

rights of light cannot be acquired by prescription against land owned by the Crown, its agencies, or their tenants, so check the history of ownership of adjoining titles.



There are other problems for litigators in light claims. For example, parasitic damages will enable the party alleging interference to claim damages beyond the directly affected parts of the building.

Mandatory injunctions have been granted recently so offending parts of completed buildings can be removed. The terms of grants and reservations of light in title deeds may be interpreted literally by the courts in such a way as to frustrate developers' plans where there is a possibility of interference with light .

The message for litigators in rights of light claims is clear. Watch the curiosities in this branch of easement law. Act fast to assert or defend the right claimed.