air right

Air rights are a type of development right in real estate, referring to the empty space above a property. Generally speaking, owning or renting land or a building gives one the right to use and develop the air rights. Supposedly, this legal concept is based on an ancient Latin saying: Cuius est solum, eius est usque ad caelum et ad inferos ("To whoever owns the land, shall belong the earth to its center and up to the heavens.").^[1]

Airplanes and air rights

Unlimited air rights existed when people began owning real estate. It was not something that anyone really concerned themselves with before the 20th century. The first legal limits placed on air rights came about because of the airplane. Eventually, owners only had rights to airspace that they could reasonably use. It would be impractical for the development of air travel for individual landowners to own all the air above them, because airplanes would be constantly trespassing.

United States

In the United States, the Federal Aviation Administration (FAA) has the sole authority to control all airspace, exclusively determining the rules and requirements for its use. Typically, in the "Uncontrolled" category of airspace, any pilot can fly any aircraft as low as he/she wants, subject to the requirement of maintaining a 500-foot (150 m) distance from people and man-made structures except for purposes of takeoff and landing, and not causing any hazard. Therefore, it appears to trump any individually claimed air rights, near airports especially.

Specifically, the Federal Aviation Act provides that: "The United States Government has exclusive sovereignty of airspace of the United States."^[2] The act defines navigable airspace as "airspace above the minimum altitudes of flight…including airspace needed to ensure the safety in the takeoff and landing of aircraft."^[3]

Property owners may waive (or purchasers may be required to waive) any putative notion of "air rights" near an airport, for convenience in future real estate transactions, and to avoid lawsuits from future owners who might attempt to claim distress from overflying aircraft. This is called an avigation easement.

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From an analysis^[which?] by AOPA.org of a lawsuit by a property owner against a nearby small airport: "The landowner's claim raises some fundamental legal principles about the ownership of land and the airspace above the land. These principles have been developing over time. In early common law, when there was little practical use of the upper air over a person's land, the law considered that a landowner owned all of the airspace above their land. That doctrine quickly became obsolete when the airplane came on the scene, along with the realization that each property owner whose land was overflown could demand that aircraft keep out of the landowner's airspace, or exact a price for the use of the airspace. The law, drawing heavily on the law of the sea, then declared that the upper reaches of the airspace were free for the navigation of aircraft. In the case of United States v. Causby^[4], the U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain".^{[citation needed]}

"At the same time, the law, and the Supreme Court, recognized that a landowner had property rights in the lower reaches of the airspace above their property. The law, in balancing the public interest in using the airspace for air navigation against the landowner's rights, declared that a landowner owns only so much of the airspace above their property as they may reasonably use in connection with their enjoyment of the underlying land. In other words, a person's real property ownership includes a reasonable amount of the airspace above the property. A landowner can't arbitrarily try to prevent aircraft from overflying their land by erecting "spite poles," for example. But, a landowner may make any legitimate use of their property that they want, even if it interferes with aircraft overflying the land".^{[citation needed]}

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 MetLife Building came to be built next to the station, after public protest regarding the demolition of Grand Central Terminal.^[5]

Building on platforms over railroad tracks is still potentially very profitable, especially in New York City. Recently the Metropolitan Transportation Authority attempted to sell air rights to the New York Jets so that they could build the West Side Stadium over railyards near Penn Station as part of the Hudson Yards Redevelopment Project. The MTA has even proposed building a platform themselves to encourage development. In Brooklyn, the Barclays Center is proposed to be constructed over the Atlantic Yards.

Roads and air rights

Similar to railroads, builders of highways have proposed selling their air rights. Boston is currently doing this in connection with the Big Dig.^[6]

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.^[7]

Transfer of Development Rights (TDR)

Many communities utilize the air rights concept to encourage the preservation of historic buildings.

For example, in a dense downtown area, there may be a historic building surrounded by skyscrapers. The building is only three stories high, but each building in the area has the right to thirty-five stories of airspace. The community doesn't want the historic building to be destroyed. The owners of the historic building could make a great deal of money by selling their building and allowing a thirty-five story office building to be built in its place.

To provide an incentive against this, the relevant authority (e.g. the municipal government) may choose to permit skyscraper developers to purchase the right to build a taller building by buying unused air rights from other property owners. In this case, a skyscraper developer may purchase the unused 32 stories of air rights from the owners of the historic building, giving them the right to build a skyscraper to a maximum height of 67 stories. This will allow the historic building owners to make almost as much money, if not more, without demolishing the historic building.

• Explanation of this concept from Eastern Michigan University
• Explanation of this concept from Ohio State University
• TDR "Field Guide"

In November 2005, Christ Church in New York sold their air rights for a record $430 per square foot. They made more than $30 million on the sale.^[8]

Other development rights

• Subsurface rights - rights to oil or minerals under property
• Riparian water rights - rights to river water in front of property
• Littoral rights - rights to ocean and beach in front of property

See also

• ancient lights
• Countryside and Rights of Way Act 2000 (in the UK)
• crown land (see "logging and mineral rights" under Canada)
• easement ("the right of use over the real property of another")
• freedom to roam
• land rights
• prior appropriation water rights
• riparian water rights
• United States v. Causby

References

External links

• Types of development rights
• Air rights over Chicago's Merchandise Mart (an early example of air rights regulation)
• Can I declare a "no-flight zone" over my house?, The Straight Dope, 13-Feb-1998.
• New York City Air Rights Map