Author: Julia Tobbell, Senior Associate, Real Estate Dispute Resolution, London
Rights to light have had a fair deal of attention in development circles recently, with the state of play post-Coventry v Lawrence somewhat uncertain. One potential weapon in the developer's armoury against rights to light claims is the light obstruction notice ("LON").
The purpose of a LON is to provide a notional obstruction to a dominant owner's right to light, thus removing the need to erect a physical obstruction. It was introduced by the Rights to Light Act 1959 and removed the need for physical 'spite screens' which had become common practice. In certain circumstances, it can have the effect of stopping the dominant owner from enjoying a right to light. A LON is valid for one year from when it is registered, after which time it expires automatically.
LONs are most commonly encountered where prescriptive rights are in issue, although in theory they can be deployed where light is enjoyed by some other means, such as lost modern grant or express grant.
In the prescriptive rights context, there are four main scenarios when a LON is registered against the dominant owner's title, as follows:
1. Dominant owner has enjoyed less than 19 years and 1 day's light and does not object to the notice
If the LON is unchallenged by the dominant owner for one year, the interruption to light is likewise deemed to have taken place for one year, meaning time stops running for the purposes of prescription. After the notice expires, time can start to accrue again and a new prescriptive right will accrue after a further 20 years (assuming no new LON is served before then). If a dominant owner knows that he does not have any other right beyond a prescriptive one, this is the likely outcome.
2. Dominant owner has enjoyed less than 19 years and 1 day's light and does object to the notice
If the dominant owner objects before the LON has been registered for a year, the objection will only succeed if he can show some other reason why a right already exists, such as a deed of grant or the doctrine of lost modern grant. If the dominant owner's only potential right is by virtue of prescription, then there can be no valid challenge to the LON and the LON will stop time running. After the notice expires, time can start to accrue again and a new prescriptive right will accrue after a further 20 years (assuming no new LON is served before then).
3. Dominant owner has enjoyed more than 19 years and 1 day's light and does not object to the notice
Even after 20 years' enjoyment, a prescriptive right can still come to an end once it has been acquired. Therefore, if no objection is made to the LON within a year, an interruption will be deemed to have existed for one year and the right comes to an end. After the notice expires, time can start to accrue again and a new prescriptive right will accrue after a further 20 years (assuming no new LON is served before then). In practice, this outcome is rare since a well-advised dominant owner will immediately issue a claim for declaratory relief upon receipt of a LON (see below).
4. Dominant owner has enjoyed more than 19 years and 1 day's light and does object to the notice
The most likely outcome, once the dominant owner has already acquired the prescriptive right, is that service of a LON will simply prompt the owner to issue a claim for a declaration that the notional interruption is unlawful (and seek his costs of having to issue such a claim). This will mean the LON does not have any effect and the right remains in existence. Often, the claim is stayed to allow the parties to negotiate a financial settlement. Service of a LON when 20 years' enjoyment has already taken place is therefore rarely of use, except to force the dominant owner into defending his position and to commence negotiations.
In summary, the most common use for a LON is before 19 years and 1 day has accrued, because most owners will not benefit from any other right to light beyond a potential prescriptive one, and will not be in a position to challenge the interruption. However, a LON can also be used where the prescriptive right has already been acquired but the developer considers there is a good chance that the dominant owner will not object to the interruption and so may lose the right altogether. The downside is that, if the dominant owner seeks advice, then he will make an objection via court proceedings, which will most likely add to the overall costs of settling the matter, and he may also take a tougher stance in compensation negotiations. There can also be a tension with insurance policy wording, which may prohibit the service of LONs as they may increase the likelihood of a higher overall compensation figure by prompting neighbours to seek advice.
LONs can also be used where the position on prescription is unclear, perhaps due to uncertainty as to the age of the dominant building. In that case, service of a LON should draw out a response of some kind from the property owner to enable the developer to identify its compensation parameters.
LONs can be a useful tool for a developer seeking to minimise its risk with regard to rights to light claims, and can also assist in flushing out potential problems. However, their use where prescriptive rights have already accrued may be limited, except where the developer considers that the dominant owner may not appreciate the need to object to the LON, thereby losing his prescriptive right. A careful risk/benefit analysis of LONs will need to take place with lawyers and rights to light consultants as part of a development's overall rights to light strategy.
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