Remedies for Breaches of Rights to Light: Averting a Tragedy of the Anticommons

Rotherham, Craig

Abstract

An occupier who enjoys light through a window in England, Wales or Northern Ireland for 20 years acquires an easement, the breach of which will amount to a nuisance. While other common law jurisdictions inherited the English law on ‘ancient lights’, such easements have largely been eliminated by legislatures in Commonwealth jurisdictions and rejected State by State by courts in the USA. This chapter explores the concerns generated by such rights and asks whether, in view of these, they should be enforced. It considers, in particular, whether right holders should always, or almost always, be entitled to an injunction or whether they might, instead, often be limited to monetary relief. An examination of reported right to light cases demonstrates the effect that the judicial approach to injunctions has on levels of litigation. A historical perspective emphasises that the courts have, at times, been sensitive to the special difficulties to which rights of light give rise and have been prepared to treat these entitlements as sui generis. An approach that, in contrast, insists that those enjoying an easement of light are entitled to an injunction as a matter of course is likely to encourage protracted disputes that will pose a significant obstacle to urban development.

Citation

Rotherham, C. (2019). Remedies for Breaches of Rights to Light: Averting a Tragedy of the Anticommons. In B. McFarlane, & S. Agnew (Eds.), Modern Studies in Property Law, Volume 10 (145-166). Hart Publishing

• Acceptance Date: Nov 26, 2018
• Publication Date: May 30, 2019
• Deposit Date: Jan 23, 2019
• Publicly Available Date: Dec 1, 2020
• Publisher: Hart Publishing
• Pages: 145-166
• Series Title: Modern Studies in Property Law
• Book Title: Modern Studies in Property Law, Volume 10
• Chapter Number: 9
• ISBN: 9781509921386
• Public URL: https://nottingham-repository.worktribe.com/output/1491221
• Related Public URLs: https://www.bloomsburyprofessional.com/uk/modern-studies-in-property-law-volume-10-9781509921386/
• Contract Date: Jan 23, 2019