Guidance

Practice guide 62A: rights to light or air

Published 15 July 2024

Applies to England and Wales

Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. Background

The right to receive natural light through a defined aperture (such as a window or skylight) can be a form of easement. However, there are special rules associated with such rights.

It is often necessary to record:

• easements to receive light or air

• restrictive covenants relating to light or air, and/or

• provisions relating to light or air

We must also consider adding, amending or removing entries where parties agree to vary or release rights to light or air.

This guide sets out how HMLR deals with such requests. It is not a general guide to the law concerning such rights.

For further information about other forms of easement, see:

• practice guide 52: easements claimed by prescription

• practice guide 62: easements

2. Registration of a right to light or air

Like any other easement, there are many ways a right to light can arise, including:

• express grant

• implication

• prescription

2.1 Express and implied grant

Where a deed expressly or impliedly grants or reserves rights to light or air, we will treat the grant or reservation as we would the grant or reservation of any other easement. For further details see practice guide 62: easements.

2.2 Rights of light or air claimed by prescription

A right to light or air may be acquired through long use:

• by common law prescription

• under the doctrine of lost modern grant, or

• under the Prescription Act 1832

Common law prescription and the doctrine of lost modern grant operate for rights to light or air as they do for other easements. However, most applicants applying to register prescriptive claims to light rely on the Prescription Act 1832 (see Prescription Act 1832). Accordingly, we do not discuss common law prescription or the doctrine of lost modern grant further in this guide. For further information on them, see practice guide 52: easements claimed by prescription.

Practice guide 52: easements claimed by prescription sets out the appropriate forms of application to protect a claimed prescriptive easement together with the evidence required with such applications. You should read that guidance in conjunction with the following when dealing with prescriptive claims to rights to light or air.

2.2.1 Prescription Act 1832

Section 3 of the Prescription Act 1832 contains special provisions which apply to rights to light. These disapply some of the restrictions which otherwise apply to the acquisition of prescriptive easements under the Act. In particular:

• there is no requirement that use be as of right (Collis v Home and Colonial Stores [1904] A.C. 179). Provided an applicant can show 20 years’ continuous use before their application, a right may arise under the Prescription Act 1832

• any consent must be in writing to prevent a right to light accruing. An oral permission does not prevent a right from arising under the Prescription Act 1832 (Plasterers Co v Parish Clerks Co (1851) 6 Exch. 630)

• it is not necessary that the enjoyment is by or against a freehold owner. Accordingly:

  • a tenant can acquire an easement over other land owned by their landlord, and

  • it does not matter whether the burdened land was subject to a tenancy during the relevant 20-year period

• there is no need for a capable grantor to grant the right

However, no right to light will arise under the Prescription Act 1832 where the benefitting and burdened land were in the possession of the same person for all or part of the relevant 20-year period (Harbidge v Warwick (1849) 3 Exch. 552).

It is not possible to acquire rights to light under the Prescription Act 1832 over Crown land (Perry v Eames [1891] 1 Ch. 658).

2.2.2 Light obstruction notices

It is possible effectively to stop the period of prescription from running by obtaining a certificate from the Upper Tribunal and registering a light obstruction notice as a local land charge, pursuant to the Rights of Light Act 1959. Such a notice, once registered, acts as a notional obstruction to the access of light to the dominant building across the servient land and prevents time from running for the purposes of a prescriptive easement claim:

• until the registration is cancelled

• for the period of one year beginning with the date of registration, or

• until the expiry date (in the case of a temporary certificate issued under s2(3)(b) of the 1959 Act)

Accordingly, in addition to the evidence referred to in practice guide 52: easements claimed by prescription, when applying to:

• register a prescriptive right to light or air, or

• enter an agreed notice of such a right where the proprietor of the burdened land does not consent to its entry

you must provide a local land charges search showing either:

• that no light obstruction notice affects the property, or

• where such a notice does affect the property:

  • the notice took effect after the prescriptive right arose (in the case of a claim under the doctrine of lost modern grant), or

  • in the case of a claim under the Prescription Act 1832, that the notice was registered less than one year before the date of your application and more than 19 years and 1 day after the use started

For further details about light obstruction notices, their registration, cancellation and variation, where HM Land Registry is the registering authority for the relevant local authority area, see practice guide 79: local land charges.

3. Restrictive covenants relating to light or air

Sometimes deeds contain restrictive covenants relating to light or air. An example might be a covenant not to obstruct the flow of light or air to the windows in the buildings already on the seller’s land. We treat these as we would any other covenant.

3.1 Restrictive covenants in leases

We will not make any entry in respect of restrictive covenants given by a tenant to their landlord relating to the land demised (section 33(c) of the Land Registration Act 2002).

Where a landlord gives restrictive covenants in a lease, see practice guide 64: prescribed clauses leases.

3.2 Restrictive covenants in other deeds – burdened land is registered

Where the restrictive covenants affect a registered estate and are in a deed that is being registered, such as a transfer or deed of easement, you do not need to make a separate application to note the covenants in the register(s) of the land affected provided all affected title numbers are included in the application.

Where there is a stand-alone deed of covenant or the covenants have otherwise not been registered and the burdened land is registered, then you will need to apply to note them against the burdened land’s title. You can apply for:

• an agreed notice using form AN1, or

• a unilateral notice using form UN1

Practice guide 19: notices, restrictions and the protection of third-party interests contains further details of how to apply.

If your application to note the restrictive covenants is successful, we will either:

• set out the covenants in the register (sometimes we will use a schedule for these purposes), or

• add an entry to the register stating that the deed contains restrictive covenants and file a copy of the deed

We cannot make any entry in the register showing that a property benefits from a restrictive covenant.

3.3 Restrictive covenants in other deeds – burdened estate is unregistered

Where the estate subject to the restrictive covenants is unregistered, you should register a class D(ii) land charge against the name(s) of the estate owners. Practice guide 63: the land charges registers and agricultural credits register: registration, official search, office copy and cancellation contains further information about this.

You can also register a caution against first registration in relation to the affected estate. Such a caution does not protect the covenants but will ensure you are given notice of any application for first registration of the affected estate. Practice guide 3: cautions against first registration contains further details.

We cannot make any entry in the register showing that a property benefits from a restrictive covenant.

4. Provisions about light or air

Often deeds contain provisions designed to prevent a property from acquiring future rights to light or air, for example, a statement that the access of light or air to the property has a transferor’s permission. Under rules 36 (on first registration) and 76 (in other cases) of the Land Registration Rules 2003, we may make a note of this in the property register for the land affected.

4.1 Provisions in leases

We do not make any entry in the register of provisions contained in leases. This is because the lease is incorporated in and becomes part of the register (R (on the application of HCP (Hendon) Ltd) v Chief Land Registrar [2020] EWHC 1278 (Admin)). However, we usually keep a copy of the lease, so those interested can see the provision.

Where the title from which the lease is granted is subject to an entry in respect of such a provision, we may replicate that entry on the title for the new lease.

4.2 First registration

Where we see that a freehold property is subject to a provision relating to light or air on first registration, we usually either:

• set out the provision in the register (sometimes we will use a schedule for these purposes), or

• add an entry to the register stating that the deed contains restrictive covenants and file a copy of the deed

However, where the provision is intermixed with other restrictive covenants or rights granted or reserved which we are setting out in the register, we will include the provision with them and not make any separate entry in the property register.

4.3 Dispositions and other dealings with registered land

Where the provision is in a deed (other than a lease) which is being registered, such as a transfer, you do not need to make a separate application to enter the provision in the register(s) of the land affected provided all affected title numbers are included in the application.

Where the deed containing the provision is not being registered, you can apply to enter the provision. Ensure the application includes a ‘Provisions’ transaction, and:

• the original or a certified copy of the relevant deed

• the relevant fee

If the application is in order, we will usually either:

• set out the provision in the register (sometimes we will use a schedule for these purposes), or

• add an entry to the register stating that the deed contains restrictive covenants and file a copy of the deed

However, where the provision is embedded with other restrictive covenants or rights granted or reserved which we are setting out in the register, we will include the provision with them and not make any separate entry in the property register.

4.4 The title benefitting from the provision

Rule 197 of the Land Registration Rules 1925 previously allowed us to make an entry on the register for the title which benefitted from the provision. There is no equivalent in the Land Registration Rules 2003. Accordingly, we no longer make such an entry.

Where we encounter an entry made under the Land Registration Rules 1925, we will not remove it. However, we will not carry it forward to any new title granted out of the benefitting title (for example on any transfer of part or lease).

5. Release of rights of light or air

Rights of light or air can end like any other easement. Practice guide 62: easements contains further details of various methods and how to reflect this on the register. When looking to register a deed of release of rights of light or air, you should read that guide in conjunction with the following.

5.1 Release or variation of rights to light or air granted or reserved in a lease

Where the release or variation affects rights granted or reserved in a lease, provided any application is in order, we will reflect the variation in both the landlord’s and tenant’s titles. Practice guide 68: amending deeds that effect dispositions of registered land provides further details about how we treat deeds amending registered leases.

5.2 Complete release and the right appears on the register

Where the deed completely releases any right to light and the right appears on the register, we will either:

• delete any reference to the right from the register, or

• add an entry to the relevant register in the following wording:

“By a deed dated [DATE] made between [PARTIES] the [DESCRIPTION OF RIGHT] referred to above has been extinguished.

NOTE: Copy filed.”

We usually choose the latter option where the relevant entry or document contains other easements which have not been released.

If the deed also contains a provision preventing future rights of light or air from arising (as most do), we will also proceed as set out in Provisions about light or air.

5.3 Partial release and the right appears on the register

Frequently, a deed will only partially release rights to light or air. A common example is to release rights of light or air to the extent necessary to carry out a specific development.

Where we receive such a deed and the rights appear on the register, we will usually add a note to reflect the variation effected by the deed and keep a copy of the deed. If the deed also contains a provision preventing future rights of light or air from arising (as most do), we will also proceed as set out in Provisions about light or air.

5.4 Complete release and the right does not appear on the register

If the deed completely releases any rights to light a property may have but those rights do not appear on the register, we will not make any note of the release on the register.

However, if the deed contains a provision preventing future rights of light or air from arising (as most do), we will proceed as set out in Provisions about light or air. If it does not contain such a provision, we will cancel any application to register the deed.

As stated in Complete release and the right appears on the register, our practice where a right to light or air is released is either to:

• delete any reference to the right from the register, or

• add a further entry in the form set out in Complete release and the right appears on the register

This is consistent with our practice for other types of easement (see practice guide 62: easements). However, neither of these options is possible where there is no existing entry relating to the right in the register.

5.5 Partial release and the right does not appear on the register

If the deed only partially releases rights to light or air and those rights do not appear on the register, we will not make any note of the release on the register. This is for the reasons set out in Complete release and the right does not appear on the register. However, you can apply to register any remaining rights in the normal way (see Registration of a right to light or air). You should include the original or a certified copy of the deed of release with that application. We will then either, amend the easement entry or add an additional entry to the register to reflect the partial release.

Irrespective of the above, if the deed contains a provision preventing future rights of light or air from arising (as most do), we will proceed as set out in Provisions about light or air. If the deed does not contain such a provision, we will cancel any application to register the deed.

5.6 Entries where it is unclear if the right has been properly extinguished

If it is not clear that the right to light or air has been extinguished and we would otherwise remove an entry or make an entry stating the right had been released, we may make an entry along the following lines:

“By a deed dated [DATE] made between [PARTIES] the [DESCRIPTION OF RIGHT AND DEED CONTAINED IN] was expressed to be released but the validity of the release has not been determined.

NOTE: Copy filed.”

6. Things to remember

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