Air rights

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

1 Airplanes and air rights
2 Railroads and air rights
3 Roads and air rights
4 Transfer of Development Rights (TDR)
5 Other development rights
6 See also
7 Other External Links

[edit] 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 air space that they could reasonably use. Obviously, someone could not own all of the sky above them because airplanes would be constantly trespassing.

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 distance from people and man-made structures except for purposes of take off 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." 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."

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 a navigation easement.

From an analysis 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 his 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 a landmark case, the U.S. Supreme Court declared the navigable airspace to be "a public highway" and within the public domain".

"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 his 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 his property as he may reasonably use in connection with his 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 his land by erecting "spite poles," for example. But, a landowner may make any legitimate use of his property that he wants, even if it interferes with aircraft overflying the land".

[edit] 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. At first, the railroad simply constructed a terminal on a platform over the tracks. This was simply an efficient use of space, as opposed to using land adjacent to the tracks. By the 1950s, the railroad began to realize it could sell its air rights and let other companies build buildings on platforms over the tracks. This is how the PanAm Building (now MetLife Building) came to be built next to Grand Central Terminal.

Building on platforms over railroad tracks is still potentially very profitable, especially in New York. Recently the Metropolitan Transportation Authority attempted to sell air rights to the New York Jets so that they could build a 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.

[edit] 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.

Architecture Week article about Big Dig air rights

[edit] Transfer of Development Rights (TDR)

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

EXAMPLE: A historic building is 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. But if they sell their air rights to someone developing an office building nearby, they can make almost as much money, if not more, without demolishing the historic building. And the person who purchases their air rights can now build a sixty-seven story office building.

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.