Daily Development for Wednesday, February 9, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
EASEMENTS; CREATION; PRESCRIPTION: There can be no negative easement by prescription, but what about by implicaton?. Hefazi v. Stiglitz, 862 A.2d 901 (D.C. App. Dec. 2, 2004)
The Appellee applied for and was subsequently granted three general building permits, one of which allowed the Appellee to block the outside view of a basement window on the Appellant's property, "as well as block… access to the chimney for repairs." By cutting off physical access to the chimney and by blocking the light, air and ambience of the window, the Appellant claimed that the Appellee damaged Appellant's property. The Appellant argued that Appellant acquired an easement by prescription in the window, because its use was continuous and uninterrupted for more than twenty-six (26) years, and is necessary for the continued enjoyment of air, light and ambiance to the first floor basement apartment of the Appellant. The District Court granted the Appellee's motion for summary judgment, without prejudice, and Appellant appealed.
At issue were properties that were originally a single property. Parts of the subdivided property were acquired by Hefazi ( the "Appellant"). Appellant, in turn, sold one parcel in 1989 to Peva, who at that time granted the Appellant an easement. The easement bound the Peva's "successors, heirs and assigns" for the purpose of permanently keeping the single water heater and furnace vents" and the circular chimney flue in joint service for the properties. Peva subsequently sold the burdened property to Stiglitz (the "Appellee").
Appealing from summary judgment for Stiglitz on all matters, Appellant reiterated his claim that Stiglitz had denied him access to the chimney. Note that, in this regard, Appellant arguably had an express easement. But apparently the parties had compromised already in making some improvements to the chimney, at shared expense, and Appellant had no immediate need to access the chimney area. If and when he did, Appellee stated in court, access would be given. This appeared to satisfy the court.
As to the blockage on one critical window, which opened onto a basement room that Appellant had been renting, there was no express easement. The local zoning authorities had permitted the blockage of the window because it was a nonconforming use (too close to the property line) and it was not felt that it was entitled to any protection in the building permit process. But Appellant claimed that it had a property right to the protection of the window. The court first turned to whether Appellant could properly claim a prescriptive easement. It noted that the law required that use of the Appellee's land must be "open, notorious, exclusive, continuous and adverse, for the statutory period of fifteen years." The burden of establishing this type of easement is on the claimant, and must be shown by a preponderance of the evidence.
The court concluded that Appellant could not demonstrate a prescriptive easement. It noted that this situation is more analogous to a negative easement, which is the right to prevent the Appellee using Appellee's property in such a manner as to affect the Appellant's use and enjoyment of Appellant's property. It held, however, that a negative easement cannot be created by prescription. Actual enjoyment of the air and light by the owner of the house is upon his own land only, and thus, no action can be maintained for obstructing a view. (citing Powell on Real Property, Section 579 (1980). Further, as an alternative holding, the court concluded that the required 15 year period of adverse use would not have occurred anyway. Although the benefitted parcel had benefitted from the window for a period exceeding fifteen (15) years, the statutory period did not begin to run until the sale to Peva. Prior to that, when Appellant owned both properties, any previous easements for!
indow were extinguished when both properties were vested in fee simple in the same owner.
The court next dealt with the question of whether any implied easement had been created when the two parcels, which had been part of a single ownership at the time the windows were built, and later divided when the party constructing the window sold the adjacent property. It held that there is no implied reservation of an easement under D.C. law unless such the alleged preexisting use (the "quasi easement") is apparent, continuous and strictly necessary for the enjoyment of the land retained. (At another point it used the term "reasonably necessary.") The court stated that an implied easement is only "necessary" by any standard if there is no possibility of enjoying the retained land without the easement. Obviously, that requirement was not satisfied here.
Comment 1: The court notes that one jurisdiction, Delaware, may have some law contrary on the recognition of prescriptive easements of light and air, and cites some authority. The opinion on this point is certainly consistent with the law as the Editor understands it. As the court points out, it is impossible to make a "negative adverse use" of your neighbor's property.
But, compare: Palomeque v. Prudhomme, 664 So.2d 88 (La. 1995). (dicta) (The DIRT DD for 7/31/96) (Yes, there was DIRT way back then). ( Servitude of light or view in a common wall can be acquired by adverse possession in Louisiana.)
Comment 2: On the implied easement point, note that the court did not deny in its discussion of the issue the possibility that a negative easement can arise by implication. Interesting. It earlier had stated, in the discussion of the alleged prescriptive easement that a negative easement must arise by "express grant," but this does not come up in the implied easement discussion, and probably is an overstatement of the court's view.
DIRT has dealt with this issue before: See, e.g. Levin v. 117 Limited Partnership, 738 N.Y.S.2d 50 (A.D. 1 Dept. 2002). (The DIRT DD for 9/11/02) (An easement for light and air cannot be created by implication, even in a lease relationship.) What follows are comments from that DD:
Note that other New York cases since 1876, not cited in Levin, have rejected the notion of an implied easement of light and air generally in land transfers, and specifically in the context of a lease. See, e.g.
Mannino v. Conoco Realty Corp., 86 NYS 2d 855 (N.Y. App. 1949), (involving a lease of a unit in a building containing five stores); Kingsway Realty & Mortgage Corp. v. Kingsway Repair Corp., 228 NYS 265 (N.Y. App. 1927) (involving the lease of a free standing building). Neither of these cases cited Doyle.
Comment 1: In their excellent treatise on the law of easements, Jon Bruce and James Ely indicate that the question of whether there can be an easement arising by implication for light and air has been much discussed by scholars, and has been decided both ways by the courts.
Although some jurisdictions have found implied easements of this type even in transfers in fee, Bruce and Ely note that no less an authority than Tiffany on the Law of Real Property suggests that courts ought to be more willing to find an easement of this type by implication in a lease, rather than in a transfer of a fee. The idea apparently is that there is a strong policy reason for rejecting the implication of a light and air easement in a transfer in fee because such an easement would permanently limit the development of grantor's adjacent land. Obviously a lease does not have the same permanency.
Friedman on Leases (Randolph edition, 2004) discusses the issue extensively at section 3.2.2 (E), citing many cases. Friedman indicates that, in his view, the concept of an implied easement of light and air in fee transfers is a dead letter, but concludes that the authority seems split as to the implication of such easements in leases
Comment 2: The editor sees no absolute policy bar to the recognition of an implied easement of light and air in a lease where other factors suggest that the parties likely intended that such an easement exist - pre-existing continuous beneficial use in the past and reasonable necessity for the continued enjoyment of the tenant's premises, at least where nothing else in the parties' conduct suggests that no such implication was intended. The editor concurs with Tiffany that the policy reasons to avoid such implication in a transfer in fee are stronger.
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