Airspace is a property law concept. Airspace refers to the air above a landowner’s property. It extends from the top of a building into the sky and from the ground if there is no building. Airspace is considered a separate piece of property from the main property. This means that there is such a thing as having air rights.
Generally, if a person owns land, they can occupy and use the airspace above their property. An example is that homeowners have the right to add an addition on top of their building or to install a tall antenna.
Owning land gives you the right to occupy the airspace above or below the property without interference from another person. How high do your rights extend? Most states will say that the landowner has rights to as much space above the property they can occupy or use. State laws vary when you want to utilize airspace on your property.
However, this has become a hotly contested issue due to the development of new technologies above the ground. Does the owner of an unmanned aerial vehicle (a drone) need to get permission to fly over someone’s house? The law has not yet been decided where the landowner’s and drone owners’ rights collide.
What Air Rights Do Tenants Enjoy?
Tenants generally enjoy the same air rights as landowners while renting a house or building. However, this may be limited since a landlord is involved and the tenant does not own the property. For example, the lease could restrict a tenant’s use of the airspace. If the lease prohibits tenants from building new permanent structures on the land, they cannot utilize the airspace for these purposes.
Additionally, if a tenant uses airspace for purposes that violate laws or ordinances, this would also be a problem. For example, say the building is in an area where burning fires outside is prohibited because there is a high risk for uncontrollable wildfires to start. If the tenant has a bonfire, this would not be a proper and legal use of their airspace. The city could fine them, and the landlord could terminate their lease.
If the lease automatically renews until one party expresses the intent to end the lease, then the airspace rights will continue until the lease is terminated. On completion of their lease, all of the tenant’s airspace rights are discontinued.
Can Airspace Rights Get Legally Transferred?
Yes. Airspace rights can be bought and sold and transferred to another party. Some common ways air right transfers can occur include the following:
- Leasing the actual airspace or property – as discussed above, tenants will enjoy temporary use of the building owner’s air rights while leasing a piece of property
- Formal sale of the airspace, which could include full or partial transfer of air rights
- Granting an interest in the airspace to someone else, like allowing your neighbor to install an antenna that encroaches onto your property
- Giving someone an easement to use part of the airspace. For example, utility companies have easements to airspace needed to put up electric poles, wiring posts, and the like
- Transferring your land to someone else by sale or gift while retaining an easement to use the land for specified purposes. This would probably create a shared right to the airspace, depending on the parties’ agreed-upon terms.
Are There Laws That Can Affect My Airspace Rights?
Certain laws and circumstances can affect your airspace rights, even when you own or rent the property. One limitation was discussed above, where a landlord places airspace restrictions in a lease.
Another limitation on your airspace rights relates to airplanes. Property rights used to be defined by points on the ground that extended indefinitely upward. This notion remained unchallenged before air travel became popular in the early 20th century. Legislators established a public easement for transit at high altitudes to promote air transport, regardless of who owns the real estate.
The Federal Aviation Administration (FAA) has the sole authority to regulate all “navigable airspace.” “Navigable airspace” has been defined as “the airspace at or above the minimum altitudes of flight that includes the airspace needed to ensure safety in the takeoff and landing of aircraft.”
New technologies have also raised questions about ownership of the upward bounds of national sovereignty. With the advent of space travel above the earth’s atmosphere, the height at which national sovereignty extends (and therefore, nations can regulate transit) is often debated.
Local zoning ordinances can also affect a landowner’s airspace rights. For example, say you buy a new house, but there is no fence around the house’s perimeter. You check your local laws and find an ordinance placing a maximum allowed height of 8 feet or lower for fence structures. If you build a 9-foot fence, you violate the local ordinance and face a fine or other legal consequences.
Can I Sue If Someone Violated My Airspace Rights?
Since airspace rights are considered real property rights, just as with the actual structure you own on the land, other people cannot legally interfere with your rights if they do not have an easement, independent contractual right, or shared interest in the airspace. If another person encroaches on your airspace rights, you may be able to take legal action and get monetary compensation or an injunction (an order for them to remove the offending object) for interfering with your rights.
For example, say your neighbor builds a treehouse in their backyard. Part of the treehouse hangs over the fence into your yard. This was not agreed upon before they built the structure, and blatantly interferes with the airspace rights in your yard. You can sue your neighbor and ask the court to issue an injunction requiring them to remove the portion of the treehouse hanging in your yard. You could also seek monetary damages for any losses suffered as a result of the airspace right violation.
On the other hand, remember you cannot sue if someone has a legal right to part of your airspace. For example, say the electric company servicing your area needed to change where the lines went in the neighborhood. This may require them to place some new electrical wires hanging in the air over your yard. Because they have an easement that you agreed to when purchasing the home, you cannot sue the electric company for placing the wires in your airspace, and your air rights would not be considered to have been violated.
Do I Need a Lawyer for Disputes Over Airspace Rights?
Airspace rights can be complicated and confusing, especially if you are not fully aware of applicable laws, ordinances, the existence of easements, or issues that affect your airspace rights. A local real estate attorney can help you determine your airspace rights and handle any court disputes if needed. A lawyer can also help you determine if utilizing airspace to build a new structure on your land would present any legal challenges.
