The right to light in Scots law

Out-Law Guide | 04 Aug 2011 | 10:16 am | 2 min. read

This guide was last updated in January 2013.

In Scotland, property owners do not have an automatic right to light. A right to light is the right not to have the natural light which reaches your property obstructed by another person's use of their property.

This guide looks at how the right to light can be created and protected in Scotland. For more on the English legal position, please see our separate Out-Law Guide.

Creating an express right to light

Before 2003 an express right to light could be created by using a legal restriction, known in Scots law as a negative servitude. It was designed to prevent a piece of property being used in a way which infringed on another's right to light. This would be created for the benefit of the property itself, rather than whoever owned the property at that particular point in time, and so would survive changes of ownership.

The Title Conditions (Scotland) Act changed this by:

  • preventing the creation of negative servitudes from 28 November 2004;
  • requiring any new real burden to be created as either an affirmative burden – an obligation to do something – or a negative burden.
  • converting all existing negative servitudes, including negative servitude rights to light, into negative burdens with effect from 28 November 2004.

These converted servitudes will expire after 10 years unless either:

  • notice of their existence is formally registered in the appropriate Scottish Property Register before the expiry of that ten year period; or
  • before 28 November 2004, the negative servitude had been registered in the appropriate Scottish Property Register.

A negative burden is an encumbrance on a property in favour of another property. It obliges the owner of the encumbered property to refrain from doing something, and it survives changes of ownership.

The effect of these changes is that any new express right to light has to be created as a negative burden.

Common law and statutory rights to light

While generally there is no automatic right to light in Scots law, a limited right to light can arise at common law from 'common interest'. Common interest is implied where the relationship between properties is such that the interest of an owner could be adversely affected by the actions of another. Typically this arises in a situation where a single property is owned in separate parts by different people. The situations in which common interest can be implied are restricted. They include the owner of a street frontage having a right to light from the adjacent public road.

The Tenements (Scotland) Act abolished common interest for tenements, although not where it applies to both a tenement and:

  • some other building or former building, whether or not a tenement; or
  • any land not belonging to the tenement.

However, the Act expressly allows any owner of a part of a tenement building who is or would be directly affected to prevent another owner or occupier doing anything that would affect that part's natural light.

In addition to these common law and statutory rights, the doctrine of 'in aemulationem vicini' might provide a property owner with a remedy where the light enjoyed by his property is being obstructed. Where a property owner uses his property in a way that interferes with his neighbour's enjoyment of his property, then he may be liable to his neighbour. For this to be the case it must be shown that his predominant motive was to interfere with his neighbour's use or enjoyment of his property.

In Scotland, the law of nuisance cannot be used to enforce a right to light. Nuisance is an infringement of the occupier's enjoyment of the 'natural rights' incidental to possession of his property and the scope of these rights is fixed by law. There is no 'natural right' to the enjoyment of access to light or air.