Leases and rights to LightAugust 15, 2016
Often it is the case that landlords grant their tenants express rights to light as leasehold easements. Then again, an easement in light in favour of tenant may be implied by means of the deeming provision in section 6 of the Conveyancing Law and Property Act 1881.
What occurs more frequently is that leases contain wording which actively seek to prevent tenants from asserting a prescriptive right to light.
The potential claim of a tenant’s prescriptive right to light can have major affects on a landlord’s development scheme, notably in terms of both delay to the development timetable and the often substantial associated legal surveyors fees being incurred. In order to prevent this it is important to make sure that well drawn leases should contain certain clear provisions which are aimed at preventing such rights arising in the first place.
The lease should reserve all light to the landlord and contain express reservation of the landlord’s right to develop its adjoining land “as it thinks fit” or “whether or not it interferes with the light enjoyed by the land conveyed”. The purpose of this particular clause is to make clear that the landlord can do whatever it wants on its own land.
Quite often the tenant will seek to restrict this but if development by the landlord of its adjoining premises is envisaged this should be strenuously resisted.
The lease should also prohibit the tenant from enjoying any light other than by the consent of the landlord.
This is a means to prevent an argument being made by the tenant that he has such entitlement “as of right”.
The lease should prohibit the tenant from making any agreement concerning the right to light without the consent of its landlord.
The lease should require the tenant to inform the landlord of all and any notices served upon it, and to inform the landlord of any attempted infringement of light which benefits the demised premises.
This will enable appropriate steps to be taken as deemed necessary.
The lease should prohibit the tenant from stopping up any windows.
Most leases will contain items 1 and 5. Where appropriate consideration should be given when drafting leases to ensuring that items 2-4 are added.
This article is for information purposes only and any specific queries should be addressed to a member of our Property Department for further and specific legal advice.