Guest Blogger,Henry Lowenstein: King Richard's Candle Standard Still Prevails

ALSB member Henry Lowenstein from Coastal Carolina University graciously shares the following post:

Here is an interesting situation published in the April 19, 2012 edition of Bloomberg Business Week Magazine over the impact of a 12th Century Law in London, England as it affects commercial builders in the city.

While the article talks about the impact on builders, it would pose an interesting discussion for business law students as to what happens in our 21st modern world when your company or house, installs (or sells) alternative energy, such as solar power, a developer (perhaps not even directly adjacent) then builds a structure that shadows or otherwise obstructs the solar cells and diminishes the energy output and hence value of your solar power system. That becomes more interesting where the state or locality has never established a view or light easement in law as they have in some states (California for example has view easements).

Would a court in the absence of a statute accept a common law claim of a right to light?

What would be the legal ramifications of such a situation?

An article by Dr. Peter S. Defoe of Anglia Ruskin University, "The Validity of Daylight Calculations In Rights To Light Cases," RICS (undated) contains a nice summary of the history of the English situation.

The London statute in question is rather interesting. The "Right to Light" is considered in English law to be a negative easement acquired by either:

-existing since time immemorial (prescription under common law)

-prescription by modern grant, or

-prescription by statute (in UK Prescription Act of 1832)

The law in question in London dates back to 1189 under King Richard I and codified in the Statute of Westminster in 1275. It literally requires that a structure cannot block light any more than "one candle's worth of natural light, which should be bright enough to read a newspaper during the day."

How does one determine the amount of light that meets the legal requirement? In 1921 an engineer named Percy Waldram estimated that during the Winter the English sky produced 500 candle power of ambient light. Thus, to meet the legal requirements of English law 0.2% of the sky must be viewable from half a room with a window. (Charles Semon and Company, LTD v. Bradford Corp., 1921)

This standard was adopted by the (UK) National Physical Laboratory in 1928. Defoe charts a line of English cases that upheld the Waldram Method through 2006.

Engineering arguments over light aside, the London situation poses some interesting business law aspects for students to contemplate in the U.S.A. Among the points:

• What happens when a 12th century law remains on the books and is never repealed?
• How does a company assure that its "green energy investment" is not negated by nearby development (solar power: obstructions of the sun; wind power: obstructions to air flows).
• In the U.S. what laws will govern such easements? state common law interpretations, state statutes? or, will the push for green energy cause Congress to use its Commerce Clause authority to develop nationalize easements for "green" energy?

Technology has moved from the candle to oil lamp to incandescent light bulb, to CFL and now LED lighting. Yet, at least for London, King Richard's candle standard still legally prevails.