Air rights

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An example of air rights in use: a high-rise building extends over a four-story building in Manhattan Air rights 318 Third Ave.jpg
An example of air rights in use: a high-rise building extends over a four-story building in Manhattan

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 develop 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.

Air travel

Property rights defined by points on the ground were once believed to extend indefinitely upward. This notion remained unchallenged before air travel became popular in the early 20th century. To promote air transport, legislators established a public easement for transit at high altitudes, regardless of real estate ownership. [1]

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.

United States

A building is cantilevered over two other buildings in New York City Building cantilever New York.JPG
A building is cantilevered over two other buildings in New York City

In the United States, the Federal Aviation Administration (FAA) has the sole authority to regulate all "navigable airspace", exclusively determining the rules and requirements for its use. [2] Specifically, the Federal Aviation Act provides that: "The United States Government has exclusive sovereignty of airspace of the United States" and "A citizen of the United States has a public right of transit through the navigable airspace." [3] The "navigable airspace" in which the public has a right of transit 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." [4]

The exact altitude(s) at which the airspace over private land is encumbered by this public easment has been addressed in the judiciary. Case law has used the height of 500 ft (150 m) in urban or suburban areas, [5] and 360 ft (110 m) above the surface or tallest structure in rural areas [6] as the demarcation of where impairment of property rights can occur. At those times this constituted the limits of "navigable airspace". More recent decisions have held that a taking can occur even beyond the airspace included with property ownership, if airflight impairments use and enjoymentof property. [7] This is especially important as some aircraft (manned and unmanned) now have no minimum flight altitudes.

Financial compensation is owed property owners when the use of their property is substantially impaired by the federal government [8] or by state government, [9] or by the aerial trespasser. [10]

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. [11]

The 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. [12] The direct challenge to the federal governments claim of a right to travel below 400ft over private property was found to violate property rights vested with the land below, see US v Causby (1946). Therefore, permission from the FAA alone (through regulation) is insufficient to allow for use of airspace below 400ft. [13] In 2018, the FAA reiterated that it has exclusive authority under federal law to impose regulations on aircraft operations, other than the location of landing sites. [14]

Railroads and air rights

Railroads were the first companies to realize the potential of making money from their air rights. A good example of this is Grand Central Terminal in New York City, where William J. Wilgus, chief engineer of the New York Central and Hudson River Railroad, devised a plan to earn profit from air rights. At first, the railroad simply constructed a platform above the rail yards to allow for the development of buildings overhead. By 1954, the railroad began to realize it could sell more air rights and Grand Central Terminal was proposed to be replaced by a 50-story tower. This is how the Pan Am Building came to be built next to the station, after public protest regarding the demolition of Grand Central Terminal. [15] This approach has been used in Chicago since the construction of the Prudential Building in 1955 above active railroad tracks of the Illinois Central Railroad. [16] In 2017, to the west of the Chicago River, River Point and 150 North Riverside were built above tracks leading to the Amtrak station.

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.

Roads and air rights

Similar to railroads, builders of highways have proposed selling their air rights; Boston did this in connection with the Big Dig. [17]

The city of 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 24 acres (97,000 m2) of new parkland. [18]

Air rights in development

The owner of the land has the exclusive development rights in the 'space' above his 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 in the area may have the right to thirty-five stories of airspace above his 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. [19]

See also

Related Research Articles

Federal Aviation Administration United States Government agency dedicated to civil aviation matters

The Federal Aviation Administration (FAA) is the largest modern transportation agency and a governmental body of the United States with powers to regulate all aspects of civil aviation in that nation as well as over its surrounding international waters. Its powers include the construction and operation of airports, air traffic management, the certification of personnel and aircraft, and the protection of U.S. assets during the launch or re-entry of commercial space vehicles. Powers over neighboring international waters were delegated to the FAA by authority of the International Civil Aviation Organization.

The Federal Aviation Regulations (FARs) are rules prescribed by the Federal Aviation Administration (FAA) governing all aviation activities in the United States. The FARs are part of Title 14 of the Code of Federal Regulations (CFR). A wide variety of activities are regulated, such as aircraft design and maintenance, typical airline flights, pilot training activities, hot-air ballooning, lighter-than-air aircraft, man-made structure heights, obstruction lighting and marking, model rocket launches, model aircraft operations, Unmanned Aircraft Systems (UAS) and kite flying. The rules are designed to promote safe aviation, protecting pilots, flight attendants, passengers and the general public from unnecessary risk.

In United States constitutional law, a regulatory taking is a situation in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it.

Trespass is an area of criminal law or tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.

Airspace Portion of the atmosphere controlled by a country above its territory, or any three-dimensional portion of the atmosphere

Airspace is the portion of the atmosphere controlled by a country above its territory, including its territorial waters or, more generally, any specific three-dimensional portion of the atmosphere. It is not the same as aerospace, which is the general term for Earth's atmosphere and the outer space in its vicinity.

The Kármán line is an attempt to define a boundary between Earth's atmosphere and outer space. This is important for legal and regulatory measures; aircraft and spacecraft fall under different jurisdictions and are subject to different treaties.

Riparian water rights is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, and states in the eastern United States.

Airway (aviation)

An airway or air route is a defined corridor that connects one specified location to another at a specified altitude, along which an aircraft that meets the requirements of the airway may be flown. Airways are defined with segments within a specific altitude block, corridor width, and between fixed geographic coordinates for satellites navigation system, or between ground-based Radio transmitter navigational aids or the intersection of specific radials of two navaids.

<i>Cuius est solum, eius est usque ad coelum et ad inferos</i>

Cuius est solum, eius est usque ad coelum et ad inferos is a principle of property law, stating that property holders have rights to not only to the plot of land itself, but also the air above and the ground below. The principle is often referred to in its abbreviated form as the ad coelum doctrine.

Florida v. Riley, 488 U.S. 445 (1989), was a United States Supreme Court decision which held that police officials do not need a warrant to observe an individual's property from public airspace.

Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), was a landmark United States Supreme Court decision on compensation for regulatory takings.

Airspace class (United States)

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This article describes the graphic conventions used in Sectional charts and Terminal area charts published for aeronautical navigation under Visual Flight Rules in the United States of America. The charts are published "in accordance with Interagency Air Cartographic Committee specifications and agreements, approved by the Department of Defense and the Federal Aviation Administration".

United States v. Causby, 328 U.S. 256 (1946), was a United States Supreme Court Decision related to ownership of airspace above private property. The Court held that title to land includes domain over the lower altitudes. The United States Government claimed a public right to fly over Causby's farm, while Causby argued such low-altitude flights entitled the property owner to just compensation under the takings clause of the Fifth Amendment." The findings were two-fold. The court rejected the United States Government's assertion to "possess" and "control" airspace down to ground level, and it nullified the doctrine that property extends indefinitely upward.

Air sovereignty is the fundamental right of a sovereign state to regulate the use of its airspace and enforce its own aviation law - in extremis by the use of fighter aircraft.

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Aviation in Washington, D.C.

The United States capital, Washington, D.C., has been the site of several events in the nation's history of aviation, beginning from the time of the American Civil War, often for the purpose of promoting the adoption of new aeronautical technologies by the government. It has also been home to several aircraft manufacturers and aviation organizations, and many aerospace contractors have maintained a presence there as well.

The US Federal Aviation Administration has adopted the name unmanned aircraft (UA) to describe aircraft systems without a flight crew on board. More common names include UAV, drone, remotely piloted vehicle (RPV), remotely piloted aircraft (RPA), and remotely operated aircraft (ROA). These "limited-size" unmanned aircraft flown in the USA's National Airspace System, flown solely for recreation and sport purposes, such as models, are generally flown under the voluntary safety standards of the Academy of Model Aeronautics, the United States' national aeromodeling organization. To operate a UA for non-recreational purposes in the United States, according to the FAA users must obtain a Certificate of Authorization (COA) to operate in national airspace. In December 2015 the FAA announced that all UAVs weighing more than 250 grams flown for any purpose must be registered with the FAA and in December 2019, the FAA proposed a ruling requiring all unmanned aircraft systems (UAS) to be equipped with a device to identify them citing “All UAS operating in the airspace of the United States, with very few exceptions, would be subject to the requirements of this rule".

The Drone Federalism Act of 2017 is a bill introduced in the 115th Congress by U.S. Senators Tom Cotton (R-AR), Dianne Feinstein (D-CA), Mike Lee (R-UT), and Richard Blumenthal (D-CT) on May 25, 2017. The bill would "affirm state regulatory authority regarding the operation of unmanned aerial systems (UAS), or drones."

Unmanned aircraft system traffic management (UTM) is an air traffic management ecosystem under development for autonomously controlled operations of unmanned aerial systems (UAS) by the FAA, NASA, other federal partner agencies, and industry. They are collaboratively exploring concepts of operation, data exchange requirements, and a supporting framework to enable multiple UAS operations beyond visual line-of-sight at altitudes under 400 ft above ground level in airspace where FAA air traffic services are not provided.



  1. Paris Convention of 1919 (Convention for the Regulation of Aerial Navigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Pan American Convention on Commercial Aviation, U.S.-Cuba, Feb. 20, 1928, see 47 Stat. 1901)
  2. 49 U.S.C. 180, 49 U.S.C.A. 18, § 40103 "use of airspace"
  3. "49 U.S.C. 40103(a)(1)" . Retrieved 2009-04-07.
  4. "Pub.L. No. 85-726" (PDF). Retrieved 2020-01-15.
  5. Lacey v. United States 595 F.2d 614 (Fed. Cir. 1979)
  6. Causby v U.S. 75 F.262 Ct.Cl (1948)
  7. Branning v. United States 654 F.2d 88 (Fed. Cir. 1981) Held a 'taking' occurred from air travel inside within the public easment at a hight of (600') due to the loud noises redering the property impared. The present case is a case, as the court foresaw in Aaron v. the United States, 160 Ct.Cl. at 301, 311 F.2d at 801, in which "the unavoidable damage [reduction of the highest and best use] to a person's property occasioned by [the noise created during] 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.
  8. US v. Causby 328 U.S. 256
  9. Griggs v. Allegheny County, 369 U.S. 84
  10. Argent v. U.S. 124 F.3rd 1277,1281 (1997) citing many[10]. Brown v United States 3 F.3d 1100 Ct Cl. (1996). also Branning v. U.S., 654 F.2d 88, 97-8 (1981)
  11. 49 U.S.C § 40110
  12. "Drone Wars: Who Owns The Air?". Retrieved 2019-07-25.
  13. 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).
  14. "FAA press release".
  15. Gray, Christopher (October 11, 1998). "Grand Central Terminal; The 23-Story, Beaux-Arts 1913 Tower That Wasn't". The New York Times. Retrieved 2009-08-22.
  16. Fuller, Ernest (December 9, 1955). "Dedicate New Prudential 41 Story Building". Chicago Tribune. Retrieved September 7, 2017.
  17. McCown, James (September 4, 2002). "Boston Air Rights". Architecture Week. 113 (4).
  18. » Community-Wide Hollywood Central Park Meeting
  19. Bagli, Charles V. (November 30, 2005). "$430 a Square Foot, for Air? Only in New York Real Estate". The New York Times. Retrieved 2009-08-22.

Transferable Development Rights (TDR)