The recent case of Metropolitan Housing Trust Ltd v RMC FH co Ltd highlights that both the landlord and the tenant of a property can have the benefit of a right of light.
The housing trust was head tenant of a block of flats and had been asked by the developer of an adjoining site to release a right of light. The right had not existed when the head lease was granted but been acquired by prescription 20 years after windows had been installed overlooking the site of the proposed development.
The freeholder of the block of flats objected and claimed that the housing trust was prevented from releasing the right of light by clauses in the head lease prohibiting the tenant from giving permission for new windows or other encroachments or the acquisition of easements.
The housing trust sought a declaration that it could release the right without its landlord's consent. The court held that the tenant had the benefit of the right (as well as the landlord) even though the lease had been granted before the right was acquired; but that the tenant could not unilaterally release the right without the consent of the landlord as this would be a breach of the lease. However, the case shows that both the landlord and the tenant of a property can acquire a right of light over adjoining land after the grant of the lease.
Developers need to ensure they obtain releases from all parties benefitting from rights of light. Any landlord whose tenant is claiming the benefit of such a right should check the provisions of the lease to see whether it can seek to prevent the tenant from giving a release (if the landlord opposes the proposed development) or to maximise its share of any compensation the developer is offering. New leases may require further drafting to enable landlords to receive the full compensation offered by a developer and procure that tenants release a right of light if required by their landlord.