Rights of light: shutting a tenant’s window of opportunity

Background

A head tenant was granted a long lease of premises known as 1-20 Royal Mint Street, London. In the lease, the head tenant covenanted:

"Not to give permission for any new window light opening doorway path passage drain 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 clause also provided for the head tenant, at the landlord’s cost, to take steps to prevent these things from happening.

Some time after the grant of the lease, the head tenant built a block of flats on the area demised by the lease. Twenty years after installation of the windows in the new flats, both the freeholder and head tenant agreed that a right of light was acquired by those windows over nearby land by way of prescription under section 3 of the Prescription Act 1832.

The issue

The adjoining owner of that nearby land wished to re-develop it, which threatened to interfere with the right of light enjoyed by the windows in the flats at 1-20 Royal Mint Street. The head tenant brought a Part 8 claim against the freeholder for a declaration that it was entitled to release the right of light enjoyed by the windows in the flats in return for compensation from the adjoining owner and that this would not amount to a breach of its lease.

The freeholder took the view such a release would be a breach of the clause above, and also sought to establish that the head tenant must not, in its dealings with the adjoining owner, give permission for the opening of any new windows in the development site.

The outcome

The court had a number of points to consider, and dismissed the head tenant’s claim for a declaration on the following grounds:

• The right of light over the development land did form part of the head tenant’s "demised premises", despite the fact the lease had been granted prior to the right of light being acquired. It was held that the right of light once acquired was a right appurtenant to the freehold, and was therefore treated as being the subject of the demise granted by the lease. The phrase "the demised premises" was not defined in the lease as simply the land itself, and therefore not only included corporeal or tangible rights but also those rights such as the right of support, or in this case, a right of light.

• The adjoining owner’s re-development would result in an actionable interference with the right of light. As the "demised premises" included the right of light, if the head tenant gave the release, the interference it permitted would be an encroachment upon or against the demised premises. However, the head tenant was only prevented from permitting such an encroachment, if the encroachment "might be or grow to the damage annoyance or inconvenience of the landlord".

• The Court therefore had to decide whether this encroachment was one which "might be, or grow to, the damage, annoyance or inconvenience of the landlord". It held that it was. The head tenants’ release could mean the freeholder had to bring a claim in near future to protect its right and this was held by the Judge to be an "inconvenience". The Court also noted that even if the freeholder continued to have a right of light at the end of the term of the lease, the interruption would have continued for many years in the meantime, and would likely reduce the freeholder’s ability to obtain an injunction against the adjoining owner in the future for the interference with the right of light.

• If the head tenant had been granted a declaration that it was entitled to release the right of light, this would not necessarily have also amounted to permission for the adjoining owner to create new windows on its new site development. The court held it may be possible (and was quite likely) that the adjoining owner would want to create new windows as part of its development, but it would be possible to draft a release which only dealt with the release of the right of light, without granting the additional right to create the windows.

• Whether the head tenant was required to try to stop the adjoining owner from acquiring a right of light over the demised premises depended on whether it was "reasonable" or "deemed proper" for it to do so in the circumstances. This point would only be decided if such a requirement was made by the freeholder.

• Finally, the court held that if the freeholder had itself also released its right of light then there would have been no breach of the lease by the head tenant.

Metropolitan Housing Trust Ltd v RMC FH Co. Ltd [2017] EWHC 2609 (Ch)