A recent case has decided that a right to light was part of the premises demised by a lease and a release of that right by the tenant could amount to an encroachment on the premises.
The case of Metropolitan Housing Trust Ltd v RMC FH Co Ltd related to a block of flats on the south side of Royal Mint Street in London. Windows in the flats enjoyed the flow of light passing across land on the other side of the street. Across the street, a developer intended to build two mixed-use buildings which, it was understood, would interfere with this flow of light.
The case was brought by the head tenant against the freehold owner of the existing block of flats. The head tenant sought confirmation that it was entitled to give permission to the developer to obstruct the flow of light. The freehold owner defended the claim, arguing that the tenant would breach its lease if it gave this permission.
The main clause of the lease in dispute provided that the tenant was '"not to give permission for any new window light opening.or other encroachment to be made nor to permit any easement to be acquired upon or against the demised premises which might be or grow to the damage annoyance or inconvenience of the landlord.'"
The questions the court needed to determine were:
- Was any right of light part of the demised premises?
- Was any interference with the right to light by the developer an 'encroachment' upon or against the demised premises?
- Was the tenant's release of the right (by giving permission to the developer to build the development) an encroachment?
- Would this encroachment result in damage, annoyance or inconvenience to the freehold owner?
The court held that the right of light was part of the demised premises, even though the right did not exist at the date of the lease. Rather it came into existence 20 years later under section 3 of the Prescription Act 1832. As a right of support was included in the definition of the demised premises, the parties had clearly not intended that the premises should only include physical items. Under established caselaw, where the land enjoying a right is subject to a lease, then use of the land by the tenant can lead to the acquisition of an easement which attaches to the freehold. As part of the freehold, it is part of the premises demised to the tenant.
As the demised premises included the right to light, giving permission to the developer to interfere with it would be to permit an encroachment upon or against the demised premises.
The encroachment would result in a reduction in the light to the premises. As the freeholder would either have to take action itself or force the head tenant to take action to prevent this, the encroachment would result in damage, annoyance or inconvenience to the freehold owner.
The head tenant's application was therefore dismissed.
However, the court said that if the freeholder had itself released the right to light, then the head tenant would not breach the lease if it went on to release the right too. This was because its doing so would not result in damage, annoyance or inconvenience to the freeholder.
Although each case will be decided on its own facts, landlords will be relieved to hear that tenants in these circumstances cannot release rights granted under their leases in order to make a 'quick buck'. Particularly in cities where space and light are subject to fierce competition, this case is important in helping landlords to maintain the value of their assets.