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In real estate, air rights are the property interest in the "space" above the Earth's surface. Generally speaking, owning or renting land or a building includes the right to use and build in the space above the land without interference by others.
This legal concept is encoded in the Latin phrase Cuius est solum, eius est usque ad coelum et ad inferos (" Whoever owns the soil, it is theirs up to Heaven and down to Hell."), which appears in medieval Roman law and is credited to 13th-century glossator Accursius; it was notably popularized in common law in Commentaries on the Laws of England (1766) by William Blackstone; see origins of phrase for details. In the 20th century, the splitting of air-rights from the underlying property became an important issue for property development, particularly for skyscrapers in some crowded cities.
New technologies have again raised questions about ownership of "space" and the upward bounds of national sovereignty. With the advent of space travel above Earth's atmosphere, the height at which national sovereignty extends and therefore nations can regulate transit is often debated.
The exact altitude(s) at which the airspace over private land can become subject to "substantial impairment" is often debated. Case law in the past has used the height of in urban or suburban areas,Lacey v. United States 595 F.2d 614 (Fed. Cir. 1979) and above the surface or tallest structure in rural areasCausby v U.S. 75 F.262 Ct.Cl (1948) as the demarcation of where impairment of property rights can occur. At those times, this constituted the limits of "navigable airspace". However, the bulk of more recent decisions, which take precedent, hold that taking can occur regardless of if the flight occurred within navigable airspace or not and only impairment of property need be considered.Branning v. United States 654 F.2d 88 (Fed. Cir. 1981)
Held a taking occurred from air travel inside of navigable airspace (600')
The present case is a case, as the court foresaw in Aaron v. United States, 160 Ct.Cl. at 301, 311 F.2d at 801, in which "the unavoidable damage reduction to a person's property occasioned by the travel in the navigable air space is so severe as to amount to a practical destruction of it." This is a case of first impression in which the court may consider the altitude of the flights over the property, but must give primary consideration to the effect of aircraft noise where the Government itself has adopted and published standards of compatibility of use of the subjacent property. Since the subjacent property owner has suffered a diminution of the value of the property in this case, there has been a taking of an easement over and through the airspace subjacent the property of the plaintiff. "It is abundantly clear that under the law established by Causby, Griggs, and Aaron a taking has occurred in this case."
Financial compensation is owed property owners when the use of their property is substantially impaired by the federal governmentUS v. Causby 328 U.S. 256 or by state government,Griggs v. Allegheny County, 369 U.S. 84 or by the aerial trespasser.Argent v. U.S. 124 F.3rd 1277,1281 (1997) citing many10. Brown v United States 3 F.3d 1100 Ct Cl. (1996). also Branning v. U.S., 654 F.2d 88, 97-8 (1981)
Congress has provided authority for the FAA to provide funds to purchase property interests in airspace (navigation easements) near airports to accommodate planes taking off and landing.49 U.S.C § 40110
The advent of low-cost of unmanned aerial vehicles (also called drones) in the 2000s re-raised legal questions regarding whose permission is required to fly at low altitudes: the landowner, the FAA, or both. There has never been a direct challenge to the federal government's vesting of the right for citizens to travel through navigable airspace. As such, the status quo is only permission from the FAA (through regulation) is required. However, existing property rights over private property still allow for civil claims of taking when property use is "substantially impaired" by the use of the airspace.Branning v. United States, 654 F.2d 88, 97-98 (Ct. Cl. 1981, Aaron v. United States, 311 F.2d 798, 801 Ct. Cl. (1963); Brown v United States 3 F.3d 1100 Ct Cl. (1996). The FAA has also reiterated that it has sole authority to regulate this right.
The owner of the land has the exclusive development rights in the 'space' above his or her lands. Under common law, building a 'hangover' that breaks the vertical plane of a neighbor's property is a trespass and the property owner has the right to remove the offending structure. The airspace is property and retains developmental rights which can be sold or transferred. Thus in a dense downtown area, each building owner in the area may have the right to thirty-five stories of airspace above his or her own property. In one possible scenario, owners of an older building of only three stories high could make a great deal of money by selling their building and allowing a thirty-five-story skyscraper to be built in its place. In a different scenario, a skyscraper developer may purchase the unused airspace from an adjacent landowner in order to develop a broader building. In November 2005, Christ Church in New York sold its vertical development rights for a record $430 per square foot, making more than $30 million on the sale for the right to build in the space over its building.
The upper stratum is the space above which ordinary use and enjoyment by the property owner is reasonable, and is loosely defined in the Section 76 Civil Aviation Act 1982 as starting between above the roof level of the property. In England, Wales and Northern Ireland, property owners have no rights to the upper stratum, but in Scotland the rights are generally extended a coelo usque ad centrum (from the sky to the centre).
The sale of air rights in the UK is generally unusual but it is legal, and becoming increasingly common.
Building on platforms over railroad tracks is still potentially very profitable. In the mid-2000s, New York's Metropolitan Transportation Authority (MTA) attempted to sell air rights to the New York Jets so that they could build the West Side Stadium over Manhattan's West Side Yard, near Penn Station, as part of the Hudson Yards Redevelopment. The Hudson Yards mega-development was eventually built over the rail yard. In Brooklyn, the Barclays Center and Pacific Park have been constructed over Atlantic Yards.
The Los Angeles funded a $100,000 feasibility study RFP in January 2007 to explore building a freeway cap park in Hollywood. The park would be built above US highway 101 and contain of new parkland.
Notes
Transferable Development Rights (TDR)
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