Let There Be Light

A right to light is a right which is enjoyed over neighbouring land which allows a landowner to receive light through defined apertures in buildings on its land. It is a form of easement which can be acquired by express grant, implied grant or by prescription. Historically, a right to light was acquired by prescription under the Prescription Act 1832 (the “1832 Act”). Prescription allows for the creation of an easement which is akin to a formal grant on the basis of long enjoyment for a period at least twenty years without interruption (unless defeated by oral evidence) or 40 years for a right to be absolute or indefeasible. Section 3 of the 1832 Act specifically applies to easements of light and provides that any claim to the use of a right to light which is enjoyed for a period of 20 years without interruption shall be an absolute and indefeasible right. Distinct from other easements, there is no requirement to establish user as of right in relation to easements of light.

Section 34 of the Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) abolished prescription at common law and acquisition on the basis of the doctrine of lost modern grant. A key aspect of the 2009 Act was the reduction of the requisite period of use to a fixed term of 12 years. The 2009 Act provided that a court order could be obtained within a transitional period of 3 years in relation to a right to light enjoyed prior to 1 December 2009. By virtue of Section 38 of the Civil Law (Miscellaneous Provisions) Act 2011 (the “2011 Act”), that transitional period was increased to 12 years. The effect of this increased transitional period is that a right to light claim acquired by prescription prior to 1 December 2009, or in the process of being acquired, can still be established until 30 November 2021. Additionally, Section 35(1) of the 2009 Act, as amended by Section 37(1)(b) of the 2011 Act, states that an easement by prescription may be acquired pursuant to Section 49A of the Registration of Title Act 1964 (the “1964 Act”). This allows for an application to be made directly to the Property Registration Authority, however this will only be appropriate if the right is not contested by a third party.

The Impact on Development- Buyer Beware

Claims of a breach of this right typically occur where a claimant argues that the building of a structure on their neighbour's land materially impacts on a person's right to natural light. For a landowner to be successful in such a...