A right to light is a right enjoyed over land belonging to someone else. It benefits buildings on the dominant land, allowing them to receive light into those buildings through particular apertures (windows, skylights and glass roofs) across the neighbouring servient land.
Unlike most easements – such as rights of way and rights of drainage, which allow one landowner to do something on another’s land – a right to light is said to be negative. A negative easement prevents a neighbour from doing something on his or her own land. So an owner of land burdened by a right to light is prevented from obstructing the light passing over his or her land in such a way that causes a nuisance to the owner of the land benefited by the right.
A right to light can prevent someone with an interest in the servient land from substantially interfering with the access of light on the dominant land.
Historically, a right of light could be established over time under the Prescription Act 1832. The aim of the 1832 act was to alleviate the difficulties caused by common law prescription and the doctrine of lost modern grant. By virtue of section 3 of the Prescription Act, a right of light can be acquired if the right to light has been enjoyed without interruption for a period of at least 20 years without the consent of a third party.
The Land and Conveyancing Law Reform Act 2009 repeals the 1832 act, which had been effective in Ireland since 1 January 1859. A key change in the 2009 act is that the requisite period of use to establish an easement has been reduced to a fixed term of 12 years. Therefore, any person who has enjoyed the benefit of a right to light (or any other easement) will be entitled to apply to the court to obtain an order confirming this right. Under the 2009 act, unless an action to obtain a court order confirming the right was brought within three years of 1 December 2009, the rights acquired under the 1832 act will have been lost and such a right will not be reacquired until 2021 at the very earliest. This transitional period of three years was extended to 12 years under section 38 of the Civil Law (Miscellaneous Provisions) Act 2011. In addition, section 37(1)(b) of the act seeks to simplify matters further and provides for an application to be made directly to the Property Registration Authority under a new section 49A of the Registration of Title Act 1964, without the need to apply for a court order. The disadvantage of the extension is that the archaic provisions of the 1832 act will continue to apply until 2021 instead of 2012, as was intended.
The economic success of the ‘Celtic Tiger’ years, coupled with our increasing population, has resulted in high-density development in city-centre locations, and the proper regulation of a neighbouring landowner’s right to light has not been monitored with any great effect. The Planning and Development Act 2000 is what the planning authorities rely on for the control of developments, but is not sufficient for dealing with an individual’s legal right to light. The grant of planning permission is not in itself a ‘right to build’. It cannot trump the legal entitlements of a neighbour.
The Irish courts have not dealt with the issue of a right to light in great detail, however, when considering how much light equates to ‘comfortable use’ and ‘enjoyment’. On the whole, there is a lack of statutory guidance and case law on an individual’s right to light in Ireland, and it is this lack of precedent in the area that should cause developers deep concern.
While the threat of a right-to-light claim in this country has never been explored in any great detail by the Irish courts, it doesn’t mean such a right does not exist in Irish law, or that a landowner claiming infringement of a right to light could not frustrate property development here to the same extent as is possible in Britain.
Extract from article written by Terry O’Malley and Published in the “Law Society Gazette” Jan/Feb 2014 Edition.
Terry O’Malley is a solicitor in the property department of Eversheds.
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