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1st December, 2016

Breach of Property Rights – a note for property developers


This article discusses breach of Property Rights – in Particular Rights to Light – and is a note for property developers.

A recent case has cemented the approach of the court in right to light claims, namely whether damages or an injunction will be awarded in relation to a successful claim.

Scott –v- Aimiuwu (2015) supports and builds upon the decision that was reached in the 2014 case of Coventry –v- Lawrence, in which the Supreme Court voiced its approval of a flexible approach to remedies in a successful claim for breaches of property rights, as opposed to the ‘status quo’ approach, in which the default position was that an injunction should be awarded unless there are exceptional reasons not to do so.

The facts of the Scott v Aimiuwu case are set out below.

Mr and Mrs Aimiuwu and Mr and Mrs Scott owned adjoining properties. The Aimiuwus built a large extension to the rear of their property, which interfered with the light to some rear/side windows of the Scott’s property. The Scotts did not take any legal action whilst the works were ongoing, but subsequently issued proceedings against the Aimiuwus, asking the court to grant an injunction requiring them to cut back their extension by a significant amount, in order to rectify the light issue.

The court held that that an injunction was inappropriate, and instead awarded damages of just over £30,000. Amongst other things, the reasoning behind that decision was as follows:

  • An injunction which required demolition of part of the property would be ‘oppressive and punitive’
  • The interference to light was only to ‘secondary accommodation’ i.e a garage, bathroom and utility room, as opposed to a living room or bedroom
  • The Aimiuwus had obtained planning permission as well as expert advice stating that the interference to light was not material. They therefore had a genuine belief that they were entitled to proceed with the works.
  • The damages awarded should reflect not a share of the profit gained from the extension, but ought to be limited to compensation for loss incurred by the Scotts.

In conclusion, the case is a positive outcome for those who wish to develop their properties. As long as the interference is only to ‘secondary accommodation’, and expert evidence has been obtained suggesting that the interference to light is not material, developers can more confidently proceed with their works in the knowledge that an injunction is not likely to be ordered if objections in relation to interference with light are raised further down the line. Developers will also be able to rely on this case in relation to the sum of damages awarded (i.e. compensatory as opposed to profit-based), and this ought to alleviate concerns that adjoining owners can relatively easily claim a share in their profits.

Article author: Sophie Greensill, Dispute Resolution & Insolvency Litigation Executive.

For specific advice concerning individual situations please contact Nick Clarke at Aaron & Partners LLP.

Nick Clarke

Partner & Head of Dispute Resolution & Insolvency
Email: [email protected]
Tel: 01244 405558

 



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