An easement may be implied or express.  Under common law, a landowner has no legal right to light and air unobstructed from the adjoining land in the absence of an easement[i].  Courts have consistently held that there is no private right to a view without an express easement[ii].

However, under some authority an easement to enjoy light and air over the portion which the grantor retains can be impliedly brought into existence if it is reasonably necessary to the enjoyment of the portion conveyed[iii].  In other words, an easement to light and air can be implied because of necessity[iv].  The existence of real and obvious necessity is determined upon the facts and circumstances of the particular case[v].

Whereas, it was observed that the law of implied grants and implied reservations based on necessity or use alone will not be applied to easements for light and air over premises of another in any case[vi]

In Maioriello v. Arlotta[vii], plaintiff and defendant were adjoining property owners.  Defendant constructed a ten foot high concrete wall on her own land, three inches from the party line and defendant’s kitchen.  It obstructed the plaintiff’s kitchen windows and prevented the free passage of light and air into the same.  Plaintiff instituted an action in equity to restrain defendant from obstructing such light and air.  The court found that there was no evidence to prove that defendant’s property would be servient to plaintiff’s.  Additionally, the court also found that there was no absolute necessity and therefore no implied easement of light and air can be decreed.

In Darnell v. Columbus Show Case Co[viii], the parties rented adjoining properties from the same landlord. Plaintiff’s property consisted of a three room tenement. The only means of ventilating and lighting two of its rooms was by a single window in each of them. Defendant, a manufacturer, piled lumber on its lot. That lumber obstructed the light and air necessary for plaintiff’s use and enjoyment of the tenement. Plaintiff commenced an action to enforce an implied easement in the use and enjoyment of light and ventilation over the adjoining land. The court observed that the defendant, as a tenant, had no greater right to interfere with the light and air than its landlord possessed.

[i] Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 3d Dist. 1959)

[ii] Bubis v. Kassin, 323 N.J. Super. 601 (App.Div. 1999)

[iii] Homewood Realty Corp. v. Safe Deposit & Trust Co., 160 Md. 457 (Md. 1931)

[iv] Maioriello v. Arlotta, 364 Pa. 557 (Pa. 1950)

[v] Nomar v. Ballard, 134 W. Va. 492 (W. Va. 1950)

[vi] Taliaferro v. Salyer, 162 Cal. App. 2d 685 (Cal. App. 1st Dist. 1958)

[vii]Maioriello v. Arlotta, 364 Pa. 557 (Pa. 1950)

[viii] Darnell v. Columbus Show Case Co, 129 Ga. 62 (Ga. 1907)