How does land get a right?

25 Nov 2016 - And The Law Says
How does land get a right?

By Christine Oxenburgh

How does land get a right?

First of all, the right belongs to the land not the owner. Change of ownership will not interrupt a right.

1. By agreement.It is quite rare for one person to grant right to light over his own land to another. However, if an owner is selling part of its land it may choose to retain a right to light over the land being sold or leased.

2. Over time

  • Common law prescription.  There is a legal term “time immemorial” that means 1189 (which is an example of a legal fiction). There is an assumption that the building on the dominant land has enjoyed the right to light since time immemorial. This is hard to prove because it is difficult to show that a building existed in 1189 and enjoyed the light. Even if the owner of the dominant land can show that the building enjoyed the light as far back as living memory can go that is not enough.
  • Lost modern grant. This really is another fiction. There is an assumption that if the light has been enjoyed for at least 20 years at any time in the past, there must have been an express grant of a right to light and the document containing it has been lost.

3. By statute.

Under the Prescription Act 1832 if a right to light is challenged and the owner of the dominant land can show that:

  • the land enjoyed the light uninterrupted for the 20 years proceedings the commencement of proceedings;
  • written consent was not given. If oral consent was given and there is evidence of payment there could still be a right. One would have thought that payment would be the equivalent of written consent. One would be wrong. I warned you this was an obscure area of law;

The use does not have to be as of right (which means without force secrecy or permission).

How do I get out of it?

Buy the dominant land! Once freeholds of the two pieces of land are in common ownership, the right is extinguished (just like the light itself perhaps).

Block the light.

As long as the dominant land has not enjoyed it for a period of at least 19 years and 1 day, if you block it, the right cannot be acquired. A screen or hedge will do. Hey are normally referred to as a “spites screen”. However, the planning laws make it hard to put one up now and leylandii may not grow fast enough.

If the dominant land owner blocks its own windows, the right will not be affected by statutory provisions but may be under common law. The dominant owner may be said to have abandoned the right.

Under statute

An obstruction that has been in place for a year will defeat and existing right.

Break in continuity.

If the free flow of light is interrupted, the right may die.

By serving a light obstruction notice

This involves an application to the Lands Tribunal. The applicant will have to show that notice has been given to those who will be affected. If the right has not been acquired, it can be prevented and if it already has, the dominant owner has a year to object or the right will go.

How does it affect me?

If you are planning a development or enhancement to an existing building it would be important to know whether a neighbour has a right that will affect you. Having established whether there is an issue or not your options are:

  • do not buy
  • adapt your design
  • buy off the dominant landowner.

Option three is the one I have most commonly come across. Getting rid of the right will affect the dominant land for the future whoever owns it. Effectively, the owner is reducing the value of the asset for the price paid.

The other hand, if you enjoying a right in either commercial or domestic premises and somebody wants to build in infringement of your right, you need to act. The grant of planning permission does not take away a cause of action. You may be able to get an injunction to prevent the infringing development. If, however, you allow the building to be put up the courts will not require the developer to knock it down again and you have limited yourself to writing damages. Damages for infringement of rights to light are not massive. Also, bear in mind the list of rights not protected that I set out the beginning of this article. As a rough rule of, there will not be a right in a cellar, a stairwell or a garden but the rule is not hard and fast. It is worth checking.

That is about the most legalistic piece I have ever written in Streetwise. I hope my readers now have a clue what to look for but this piece does not even try to be advice on a specific project. It is an area where expert advice should be taken.

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