There has been publicity recently about changes to the law relating to "right to light" in England. In a recent English High Court case, the court granted an order requiring a building to be partly demolished. This was to protect a neighbour's right to light. The order was granted even though the building was partly occupied by a tenant.
The case ultimately settled out of court, however the English Law Commission has published a consultation on rights to light in an apparent attempt to re-address the issue. Click here for a link to the consultation paper.
How, if at all, are rights to light preserved in Scotland?
There is no right to light in Scotland as such. However, it may be possible to impose title conditions preventing one property being used in a way that will negatively impact upon the amount of light that reaches another property. This is linked to amenity rather than simply light. Such conditions are called "negative burdens" and they must be created in a deed. In other words there can be no implied negative burdens.
What about existing rights? Are they secure?
Prior to the Title Conditions (Scotland) Act 2003, it was possible to create a right to light by way of a device called a negative servitude. The issue was that negative servitudes did not need to appear in the title deeds of either the property having the right or the property adversely affected by it. Therefore it could be difficult to determine if a property enjoyed, or was affected by, such a condition. The 2003 Act converted all existing negative servitudes to negative burdens. However, as part of the 2003 Act reforms these converted servitudes/burdens will be extinguished on 28 November 2014 unless an appropriate notice is registered in the Land Register of Scotland before then. This is driven by the laudable desire to modernise the registers and to ensure that, for each property, its registered title sheet discloses all relevant conditions. Accordingly after 28 November 2014 it will be possible to identify on the face of the title all relevant negative burdens, including any that create a right to light.
If you think that your property may have such a right and that it may fall into the category that will be extinguished in 2014, now is the time to act.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
