Can a tenant validly release rights to light? Senior Associate Phil Scully looks at a recent High Court case that provides answers to this question.

A High Court case has highlighted the need to properly identify who should be party to the release of rights of light to enable development on adjoining land.

Metropolitan Housing Trust Ltd v RMC FH Co. Ltd [2017] concerned a tenant which had acquired a right of light over adjoining land. The right of light did not exist at the date of the lease and was acquired by the tenant, after the grant of the lease, by way of prescription over a 20 year period.

The owner of the adjoining land over which the tenant had acquired the benefit of a right of light wished to develop the land, which was likely to cause an actionable interference with the right of light, thereby enabling the tenant to obtain an injunction preventing the development and/or damages for the interference.

The tenant wished to enter into a deed of release with the developer to enable the development, by which it would have secured compensation. However, the tenant’s landlord did not wish to permit this and argued that the right of light formed part of the demised premises (even though it was secured post-grant), which in turn meant that a release of the right by the tenant, facilitating an interference, would constitute a breach of the lease which provided that the tenant was not to give permission for any encroachment against the demised premises.

The Court accepted the landlord’s argument that acts by a tenant will be treated as acts by the freeholder and give rise to an easement “appurtenant to the freehold”. The Court also accepted that a tenant could claim the benefit of an easement appurtenant to the freehold after the date of the lease and the right would be treated as being part of the premises demised to the tenant, even though the right was obtained after grant.

In the circumstances, the question was whether the intended release by the tenant of the right of light would be a breach of the terms of the lease. The Court found that the erection of a building on the adjoining land which interfered with the right of light, would be an encroachment upon the demised premises as the demised premises included the right of light. As the terms of lease restricted the tenant from permitting an encroachment, the intended release would give rise to a breach.

The case shows that it is possible for a tenant to benefit from a right of light easement, arising from prescription, after its lease has been granted and a developer of the burdened land should note the tenant’s interest when seeking to secure a release. It also shows it is necessary to check whether or not a tenant purporting to release a right of light is permitted to do so pursuant to the terms of its lease, which may necessitate further engagement with the landlord.

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