What happens if land is let or sold subject to the L’s/seller’s right to redevelop neighbouring land? Typically, this will be in a lease which says that T is not to acquire any implied easements, and L shall have the ‘full and free right to erect build rebuild and alter’ on any adjoining land. Does this mean that T cannot get a right of light over that land? The answer is ‘yes’, according to the CA.

This is, of course, a not uncommon situation. The same principles apply whether it is an L granting a lease to a T, or a freeholder selling off a plot of land. In either situation, the fact that a right of redevelopment is retained will probably mean that no right of light can be acquired (because it will have been ‘enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing’ – which means that prescription cannot apply).

In the recent CA decision, it was strongly argued that the right to light could only be prevented from arising if the word ‘light’ was specifi cally referred to in the original lease (or deed of transfer). But, the CA disagreed; whilst each case will depend upon the precise wording of the documentation, it took the view that a general right of redevelopment would normally be suffi cient to exclude an implied right of light.

This is, of course, a very important decision (and it must be emphasised that it does not just apply to Ls and Ts, but also to sellers and buyers). If a large landowner sells off part of its estate, then the landowner will generally want the freedom to redevelop its adjoining property as it chooses. In practice a welldrafted transfer deed will contain wording (eg a right to redevelop) that comes within the exception to Prescription Act 1832, and this will then prevent the purchaser raising a right of light so as to inhibit the landowner’s subsequent ability to redevelop. Needless to say, many prospective Ts (or prospective buyers) may want to resist accepting a provision that allows L (or the seller) the right to redevelop adjoining property, since such redevelopment may adversely impact on the enjoyment and value of what is currently being bought. Accordingly, this issue should be addressed before contracts are exchanged; those acting for the prospective T (or buyer) should specifi cally check whether there is a right to redevelop which could prevent a right to light arising, and advise the client accordingly. See excellent commentary on RHJ Ltd v FT Patten [2008] EWCA Civ 151 [2008] 207 Property Law Journal 13. © Practical Lawyer