Air rights

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An example of air rights transfer between properties: a high-rise building extends over a four-story building in New York City. Air rights 318 Third Ave.jpg
An example of air rights transfer between properties: a high-rise building extends over a four-story building in New York City.

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.

Contents

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.

Air travel

Property rights defined by points on the ground once extended 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 can become subject to "substantial impairment" is often debated. Case law in the past 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". 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. [7] This is especially important as some aircraft (crewed and uncrewed) now have no minimum flight altitudes making virtually all airspace "navigable".

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] 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. [13] The FAA has also reiterated that it has sole authority to regulate this right. [14]

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. [15]

United Kingdom

Airspace around a property in most of the United Kingdom is divided into the "lower stratum" and "upper stratum". The lower stratum is the area around and above a property that the owner can expect to reasonably enjoy - in other words, interference by others into this area is usually deemed an act of trespass. This can include overhanging trees or signage from a neighbouring property, or movement such as a crane swinging overhead. [16] [17] However the right to enjoy this airspace is not an automatic right to build into that space without planning permission.

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 500 and 1,000 feet (150 and 300 m) 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). [18]

The sale of air rights in the UK is generally unusual but it is legal, and becoming increasingly common. [19]

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 construction 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 MetLife Building came to be built next to the station, after public protest regarding the demolition of Grand Central Terminal. [20] This approach has been used in Chicago since the construction of what is now Riverside Plaza in 1929, as well as Prudential Building in 1955 above active railroad tracks of the Illinois Central Railroad. [21] In 2017, to the west of the Chicago River, River Point and 150 North Riverside were built above tracks leading to the Amtrak station.[ citation needed ]

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.[ citation needed ]

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. [22]

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. [23]

See also

Related Research Articles

In United States constitutional law, a regulatory taking occurs when governmental regulations limit the use of private property to such a degree that the landowner is effectively deprived of all economically reasonable use or value of their property. Under the Fifth Amendment to the United States Constitution governments are required to pay just compensation for such takings. The amendment is incorporated to the states via the Due Process Clause of the Fourteenth Amendment.

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

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 outer space which is the expanse or space outside the Earth and aerospace which is the general term for Earth's atmosphere and the outer space within the planet's vicinity.

<span class="mw-page-title-main">Homestead principle</span> Legal principle regarding unclaimed natural resources

The homestead principle is the principle by which one gains ownership of an unowned natural resource by performing an act of original appropriation. Appropriation could be enacted by putting an unowned resource to active use , joining it with previously acquired property, or by marking it as owned.

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, New Zealand, and states in the eastern United States.

<i>Cuius est solum, eius est usque ad coelum et ad inferos</i> Principle of property law concerning air and subsurface rights

Cuius est solum, eius est usque ad coelum et ad inferos is a principle of property law, stating that property holders have rights 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.

In rem jurisdiction is a legal term describing the power a court may exercise over property or a "status" against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property.

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.

<span class="mw-page-title-main">Trespass to land</span> Use of land prevented by local property laws

Trespass to land, also called trespass to realty or trespass to real property, or sometimes simply trespass, is a common law tort or a crime that is committed when an individual or the object of an individual intentionally enters the land of another without a lawful excuse. Trespass to land is actionable per se. Thus, the party whose land is entered upon may sue even if no actual harm is done. In some jurisdictions, this rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction to remedy the tort.

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. Penn Central sued New York City after the New York City Landmark Preservation Commission denied its bid to build a large office building on top of Grand Central Terminal. The Supreme Court ruled in the city's favor.

The Supreme Court decision in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), reaffirmed that each state in its sovereign capacity holds title to all submerged lands within its borders and holds these lands in public trust. This is a foundational case for the public trust doctrine. The Supreme Court held a four to three split decision that the State of Illinois did not possess the authority to grant fee title to submerged lands where doing so would preclude exercise of the public right to commercial navigation and fishing in navigable waters.

St. Louis v. Myers, 113 U.S. 566 (1885), was a motion to dismiss for want of a federal question to give jurisdiction regarding Acts that admitted Missouri into the Union while leaving the rights of riparian owners on the Mississippi River to be settled according to the principles of state law and relinquishing to the City of St. Louis the rights of the United States in wharves and thoroughfares, which did not authorize the city to impair the rights of other riparian proprietors by extending streets into the river.

An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a property right and type of incorporeal property in itself at common law in most jurisdictions.

United States v. Causby, 328 U.S. 256 (1946), was a landmark United States Supreme Court decision related to ownership of airspace above private property. The United States government claimed a public right to fly over Thomas Lee Causby's farm located near an airport in Greensboro, North Carolina. Causby argued that the government's low-altitude flights entitled him to just compensation under the Takings Clause of the Fifth Amendment.

<span class="mw-page-title-main">Air sovereignty</span> Right of a state to control its own airspace

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.

<span class="mw-page-title-main">Aboriginal title in the United States</span> First country to recognize aboriginal title

The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title. Native American tribes and nations establish aboriginal title by actual, continuous, and exclusive use and occupancy for a "long time." Individuals may also establish aboriginal title, if their ancestors held title as individuals. Unlike other jurisdictions, the content of aboriginal title is not limited to historical or traditional land uses. Aboriginal title may not be alienated, except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans own in fee simple and occupy under federal trust.

The US Federal Aviation Administration has adopted the name small unmanned aircraft system (sUAS) to describe aircraft systems without a flight crew on board weighing less than 55 pounds. More common names include UAV, drone, remotely piloted vehicle (RPV), remotely piloted aircraft (RPA), and remotely operated aircraft (ROA). These unmanned aircraft flown in the USA's National Airspace System must operate under the rules of a Community Based Organization for recreational purposes or 14 CFR Part 107 for commercial operations. All UAVs weighing more than 250 grams flown for any purpose must be registered with the FAA.

<span class="mw-page-title-main">Real property</span> Legal term; property consisting of land and the buildings on it

In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, refers to parcels of land and any associated structures which are the property of a person. In order for a structure to be considered part of the real property, it must be integrated with or affixed to the land. This includes crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads. The term is historic, arising from the now-discontinued form of action, which distinguished between real property disputes and personal property disputes. Personal property, or personalty, was, and continues to be, all property that is not real property.

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."

<span class="mw-page-title-main">Aerial surveillance doctrine</span>

The aerial surveillance doctrine is the legal doctrine in the United States of America that under the Fourth Amendment, aerial surveillance of an individual’s property does not inherently constitute a search for which law enforcement must obtain a warrant. Courts have used several factors–sometimes only one or a few, other times many or all of them–to determine whether the surveillance in question is a search in violation of one’s constitutional rights: the object of the surveillance, the technology employed, the duration of the surveillance, scope of aggregated information, and the vantage point from which the surveillance is conducted.

References

Notes

  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 7 April 2009.
  4. ↑ "Pub.L. No. 85-726" (PDF). Retrieved 15 January 2020.
  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 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 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?". NPR.org. Retrieved 25 July 2019.
  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" . Retrieved 16 February 2024.
  15. ↑ Bagli, Charles V. (30 November 2005). "$430 a Square Foot, for Air? Only in New York Real Estate". The New York Times. Retrieved 22 August 2009.
  16. ↑ "Property Law Summary" (PDF). Lawskool UK. Archived (PDF) from the original on 25 August 2021. Retrieved 21 August 2021.
  17. ↑ "What is legally my land". InBrief.co.uk. Retrieved 25 August 2021.
  18. ↑ "Dictionary of Scottish Land Law Terms - Scots Property Law Glossary". www.scottishlaw.org.uk. Retrieved 25 August 2021.
  19. ↑ "Why more private developers are looking to buy up the air rights above your building and make a fortune". CityAM. 28 September 2016. Retrieved 25 August 2021.
  20. ↑ Gray, Christopher (11 October 1998). "Grand Central Terminal; The 23-Story, Beaux-Arts 1913 Tower That Wasn't". The New York Times. Retrieved 22 August 2009.
  21. ↑ Fuller, Ernest (9 December 1955). "Dedicate New Prudential 41 Story Building". Chicago Tribune. Archived from the original on 4 September 2017. Retrieved 7 September 2017.
  22. ↑ McCown, James (4 September 2002). "Boston Air Rights". Architecture Week. 113 (4).
  23. ↑ "Hollywood Central Park |". hollywoodcentralpark.org. Retrieved 16 February 2024.

Transferable Development Rights (TDR)


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