Daily Development for Thursday, September 11, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EASEMENTS; IMPLICATION; LEASES: An easement for light and air cannot be created by implication, even in a lease relationship.

Levin v. 117 Limited Partnership, 738 N.Y.S.2d 50 (A.D. 1 Dept. 2002).

Defendant landlord sealed an airshaft in a multi-tenant building Tenant objected that this violated an implied easement of light and air that passed to the tenant as part of the lease.

Held: The lessee's rights were not violated as there was no explicit grant of easement in the applicable lease. Absent an express grant, lessees of individual rooms of a premises can carry no implied easement of light and air.

The court does not tell us whether the lease was a residential or commercial one - but presumably the loss of light and air might violate the implied warranty of habitability in a residential lease. The court, further, comments that its holding has no "bearing on plaintiffs' claim that the sealing of the air shaft constitutes a diminution of building services.")

The court limited its holding to leases of rooms in a premises in order to distinguish a hoary New York Court of Appeals decision, Doyle v. Lord, 64 N.Y. 432 (1876) which had in fact held that a landlord who leased a building on certain premises to a tenant, but did not include a right of access to a rear yard that was part of the premises, was nevertheless barred from constructing a building in that yard which would cut off the light and air to the leased premises. Since Doyle was binding authority, apparently, the instant court elected to distinguish it by noting that the case before it involved only rooms in a multi-tenant building. It made no effort, however, to indicate why this difference in the two factual situations should matter.

Note that Doyle itself was somewhat limited, as it indicated that it would not have held as it did had the proposed construction been on other property owned by the landlord at the time of the lease. It saw a difference in the fact that the property where the building was proposed was part of the actual lot on which the owner had already leased an existing building. Again, however, the court made no effort to explain why this difference mattered.

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, discusses the issue extensively at section 3.3, 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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