Light and Air Easements

Light and air easements, the recorded promises that let bulk assembled in the way Michael Stern describes be laid out as habitable rooms, begin with a distance. The New York Law Journal overview of the city’s window requirements explains that every living room in a residential unit, meaning any habitable room other than a small kitchen, bathroom, foyer or hall, must have a legal window, and that unless the window opens on the street, Section 23 861 of the Zoning Resolution demands at least 30 feet of open area between it and the opposite wall or the rear or side lot line, measured in a horizontal plane at sill level, perpendicular to the window, across the full width of the rough opening.⁴ A tower that reaches its lot line can satisfy that rule only if the thirty feet are borrowed from next door, and the borrowing is the easement.

The rule and where the thirty feet may lie

The Resolution repeats the dimension in several places. The overview notes that the required rear yard for residential use is generally 30 feet, that the smallest inner court is generally 30 feet, and that a window may face a shallow lot’s reduced rear yard of 20 feet but never a substandard court.⁴ What matters for assemblage is where the open area may sit: on the zoning lot itself, which may include another parcel of a merged lot, so that a merger undertaken to buy floor area, the subject of zoning lot mergers, can also give the windows that floor area needs the open distance they must have.⁴ The right is not automatic. The overview advises that the development agreement spell out the easement over the adjoining parcel and require the neighbor to deliver it in the separate form the Department of Buildings prescribes, and that the easement may run over the full height of the neighbor’s existing building or above a defined plane if that owner expects to build later, with allowance for bulkheads and rooftop equipment.⁴

The same distance decides what a buyer owns. Brick Underground’s advice column describes lot line windows, sometimes recognizable by wire embedded in the glass, which do not count toward light and air at all, so that a bedroom whose only windows sit on the lot line is not a legally habitable room and should not have been sold as one.¹ The column’s advice to an owner facing a wall going up next door is to search the property records and the offering plan for an existing easement, which can be filed with the Department of Buildings and would stop the windows from being bricked over, and failing that to negotiate one as part of a merger with the neighbor.¹

Figure

The dimensions behind a legal window

open area required in front of a legal window under Section 23 861

30 feet

the shallowest rear yard a legal window may face on an unusually shallow lot

20 feet

the distance allowed in a converted nonresidential building under the Multiple Dwelling Law

15 feet

the smallest window the Multiple Dwelling Law accepts, with all windows in a room totaling a tenth of its floor

12 square feet

There are exceptions and waivers. The overview records that the Board of Standards and Appeals can waive the distance by variance and that City Planning can do so under certain special permits, generally only where an applicant demonstrates that daylight and ventilation remain adequate, for instance where less than 30 feet lies on the lot but more open area is secured by easement over a parcel on a different zoning lot.⁴ Conversions of nonresidential buildings follow the looser Multiple Dwelling Law, which accepts 15 feet between window and opposite wall, up to 10 of them on the neighbor’s lot with no easement at all, so that a converted building can end up with a legal window five feet from a neighbor free to build to the line.⁴ How the Building Code and the Resolution divide such questions is explained at building code versus zoning.

The recorded promise

The instrument itself is short. The Department of Buildings’ model agreement names a grantor who owns Parcel A and a grantee who owns Parcel B, recites that the Department may approve the grantee’s application on condition that Parcel A grant an easement benefiting the present and future owners of Parcel B, and then conveys unrestricted light and air over Parcel A such that construction there shall never infringe on it.⁷ The agreement may not be modified or ended without the Department’s written consent, its covenants run with the land, failure to comply may cost the permit or the certificate of occupancy, and it is recorded against every affected parcel with its reference number noted on each later certificate of occupancy and deed.⁷ A footnote draws a boundary: the form satisfies the Building Code’s window provisions on an adjacent tax lot, but it cannot be used to meet the Zoning Resolution’s requirement across a zoning lot line, which is why the zoning lot itself must usually be merged first.⁷

Figure

The Department of Buildings model agreement, clause by clause

1. 01
   PartiesA grantor owning Parcel A and a grantee owning Parcel B, each named by borough, block and lot with a boundary schedule attached.
2. 02
   TriggerThe Department may approve the grantee's application on condition that Parcel A grant the easement, to satisfy the Building Code's window provisions.
3. 03
   GrantUnrestricted light and air over Parcel A, so that nothing built there ever infringes on what Parcel B's rooms receive.
4. 04
   LockNo amendment or termination without the Department's prior written consent.
5. 05
   Runs with the landThe covenants bind heirs, successors and every future owner of both parcels.
6. 06
   RecordRecorded against all affected parcels, with its cross reference number carried on every later certificate of occupancy and deed.

Inside a merger the easement is one clause among several. Warshaw Burstein’s alert ranks it second among the matters a development agreement should settle, describing a restriction on how high the seller may build and on anything installed on that roof, preserving the view from the buyer’s new building and allowing some of its windows to qualify as legal.⁶ The Nacmias firm’s outline of a transfer puts the easement among the documents negotiated alongside the declaration and the agreement, and notes that easements appear as exceptions on a title report and survive a sale.⁸ The overview adds that a title company will insure the easement and the covenants not to build under a New York City development rights endorsement, so the promise is underwritten as well as recorded.⁴ LSD.Law’s definition gives the general form outside New York: a right to receive unobstructed light and air across a neighbor’s land, which keeps that neighbor from putting up buildings or tall plantings that would block it, and which can oblige a new building to step back or shorten on particular floors.⁵

The older idea, ancient lights

The New York instrument is a contract, which it has to be, since the older way of acquiring the same right never took hold here. Britannica describes the English doctrine of ancient lights, under which an owner who had used windows for light for twenty years or more could not have them obstructed by a neighbor’s new building, a rule dating from 1663 and resting on the theory that long use ripened into an easement; the doctrine, Britannica adds, did not gain wide acceptance in American courts.³ BLDGBLOG tells the modern English side of it: surveyors warning owners that neighbors may quietly acquire a right to light that will later hamper building on their own land, and the odd remedy of drawing a notional screen of unlimited height along the boundary to interrupt the twenty years before they run.²

Figure

Ancient lights against the New York instrument

	Ancient lights, England	Light and air easement, New York
How it arises	By twenty years of uninterrupted use of a window	By a written grant between two owners
Who it binds	The adjoining landowner, without any agreement	The grantor and every later owner, through recording
Origin	English property law, from 1663	A city form tied to the Building Code and the Zoning Resolution
Standing in the United States	Little acceptance by American courts	Routine in merged zoning lots

Where New York records a promise, London paints a notice. BLDGBLOG points to signs reading Ancient Lights still fixed beside individual windows in the back alleys near Covent Garden and Chinatown, each one a claim on the sky above a neighbor’s lot made without any neighbor’s signature.² In New York the claim is made the other way around, written out, consented to by the Department, and filed where every later buyer of either parcel will find it.