Right to Light – Your Questions Answered

What is a Right to Light?

A Right to Light is a type of easement, being a right affecting someone else’s land for a specific purpose. It is an easement to a minimum level of natural daylight illumination through a particular opening (usually a window). A Right to Light can arise by an express or implied grant; however the most common method of acquiring the easement is by Prescription – uninterrupted enjoyment of the right for a period of time. Since the introduction of the Land and Conveyancing Law Reform 2009 Act, the period for Prescription has been reduced to 12 years.

In order to arise there must be a “dominant tenement” – land benefiting from the right – and a “servient tenement” – land subject to the right. These two pieces of land must be owned by different people. The right must not be vague or uncertain and must benefit the dominant tenement in some way – it must be connected with enjoying that land. A Right of Way is a common easement, being a right to pass over someone else’s land (the servient tenement) to access your land (the dominant tenement) for a specific purpose (access). In contrast to a Right of Way, a Right to Light is a negative easement: it can prevent the owner of the servient tenement from doing something with their property – most commonly constructing a building that may reduce light to the dominant tenement.

A Right to Light is not a right to a view. Obscuring a sea view may not give rise to an actionable Right to Light claim if the number of lumens (the measurement unit for natural light) inside the room which previously enjoyed the view are not sufficiently reduced.

Question:  We are purchasing a site in a built-up area with a view to development. What investigations should we carry out?

In the first instance, a surveyor should be instructed to carry out an assessment if on a practical level the intended development may impact upon the light to adjoining properties such that it may cause a nuisance.

Once potentially affected buildings are identified your solicitor should carry out a comprehensive investigation of the history of those buildings to ascertain if they could enjoy a Right to Light. A newly-constructed building can still enjoy a Right to Light if its openings (eg. windows, skylights) roughly correspond to the openings on a building previously on the site. A Right to Light can be registered as an easement with the Property Registration Authority and your solicitor should be able to advise if this or any other easements affect the site.

Importantly, the issuing of a Grant of Planning Permission does not negate any Right to Light a neighbouring landowner may have. These are viewed as separate issues: the Local Authority will consider light in its overall assessment of the development but a Right to Light is a private matter between the two landowners.

Question:  If it appears there may be Rights to Light affecting our development site: what should we do?

If the Right to Light is identified at an early stage it may be possible to adapt the design of the building to minimise interference with adjoining properties.

If there is an interference with a Right to Light such that a nuisance arises, a person claiming a Right to Light can sue for damages or seek an injunction. The effect of an injunction may be to prevent construction pending a full hearing of the action or on a permanent basis or requiring the demolition or alteration of the building if construction has completed. The Court will consider the current and future uses of the property benefiting from the Right to Light, its location and weigh the impact on both parties in determining whether damages is a more appropriate remedy than an injunction.

If you are concerned that construction may interfere with a Right to Light, insurance policies are available to mitigate the risk. Information you have accumulated with your surveyor and solicitor in your survey of the site and assessment of the history of adjoining buildings will be required in order for your insurer to understand the risks and put in place the necessary policy.

With recent changes to planning rules allowing for taller buildings in urban areas, Right to Light issues, claims and insurance policies are likely to now become a common issue for developers.

How we can help

If you have any queries or concerns, or would like to discuss the above in further detail, please feel free to contact Michelle McArdle in our Real Estate Department on mmcardle@bhsm.ie / +353 (0)1 440 8313.

This article is for general information purposes.  Legal advice must be obtained for individual circumstances.  Whilst every effort has been made to ensure the accuracy of this article, no liability is accepted by the author for any inaccuracies.