In cases involving transfers of part, it is common to reserve rights to build in favour of the transferor and the retained land notwithstanding any interference with rights to light enjoyed by the land transferred. It is less common, but not unusual, to find reciprocal rights granted in favour of the transferee and the transferred land. An example clause may look like this:
“… the right to build on [the retained/transferred land] or alter [any adjacent or neighbouring building/ land] in such manner as [the transferor/transferee] thinks fit, notwithstanding any interference with the access of light or air to [the property]”.
Rights to light can have serious ramifications for potential development of land. One of the ways such rights can be acquired is by prescription under section 3 of the Prescription Act 1832. Prescriptive rights are dependent on the length of time a right has been enjoyed without written consent. The purpose of clauses like the example above is to provide that written consent and in so doing to avoid the risk of rights to light by prescription arising.
The High Court has been asked recently to rule on whether the inclusion of such a clause constituted a bar to claims for infringement of rights to light and endorsed the widely held view that the clauses worked effectively to block claims based on prescription. However, the case was interesting in that it highlighted a few important points to bear in mind when negotiating a transfer of part:
- What is the position with regard to rights to light, permissive or otherwise as at the date of the transfer and which rights to light going forward are to be enjoyed solely on the basis of written ‘permissive’ consent?
- What do you envisage the right to build encompassing? Are there to be limitations as to design, height and proximity to be taken into account in the documentation?
- Is the benefit of the consent to be enjoyed by successors in title? Likewise, is the consent intended to bind successors in title?
CGIS City Plaza Shares 1 Ltd and another v Britel Fund Trustees Ltd [2012] EWHC 1594.
