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 ("For 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.
Property rights defined by points on the ground were believed to extend indefinitely upward. This notion remained unchallenged before air travel became popular in the 20th century. To promote air commerce, legislators established a legal height for any interests associated with lands; thereby establishing a public right to transit through the higher altitudes. Both the public easement in the space at higher altitudes and a landowner right to exclusive use of the space at lower altitudes has been well documented by the U.S. judiciary.
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. Also, flight by drones at lower altitudes interferes with property interests associated with existing land grants and deeds.
In the United States, the Federal Aviation Administration (FAA) has the sole authority to control all "publicly owned" airspace, exclusively determining the rules and requirements for its use. Specifically, the Federal Aviation Act provides that: "The United States Government has exclusive sovereignty of airspace of the United States", but not all the airspace is "possessed" by the United States. For non-public airspace, Congress has provided authority for the FAA to purchase this non-public airspace near airports to accommodate planes taking off and landing. The "navigable airspace" in which the public has a right of transit without effecting a landowners property rights has been set at the height of 500 ft in urban or suburban areas, and 360 feet above the surface or tallest structure in rural areas. The exact altitude(s) at which the airspace over private land becomes "public" airspace, or where the upward bounds of national sovereignty extends is often debated, but the Supreme Court rulings and space treaties are clear. A Landowner's domain extends up to at least 365 feet above the ground. see Causby v US (1946), and no nation can prevent orbits above the earths atmosphere.
The FAA is required to pay financial compensation to Property Owners when their property interests are taken for overflights. Compensated landowners may then be required to waive any putative damages for interference with "air rights" in order to avoid lawsuits from future owners nuisance claims against low flying aircraft. This is called a navigation or avigational easement.
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. Although the FAA reestablished that navigable airspace is the space above 500 feet, the FAA also set regulations which "allow" drones to fly below 400 feet in order to prevent interference with planes above that height. The FAA's actions are expected to see challenges in the judiciary.
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.
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 the West Side Yard 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 has been constructed over the Atlantic Yards.
Roads and air rights
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.
Air rights in development
Some jurisdictions restrict vertical development, but may allow developmental rights associated with vertical size of buildings to be transferred to the surrounding buildings. Thus in a dense downtown area, each building in the area may have the right to thirty-five stories of airspace. The owners of an old 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. To avoid the loss of historically interesting buildings, the government may instead choose to permit developers to purchase the unused air rights of nearby land. In this case, a skyscraper developer may purchase the unused 32 stories of air rights from the owners of the historic building, allowing them to build a skyscraper to a total height of 35 + 32 = 67 stories. 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.
- 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)
- 49 U.S.C. 180, 49 U.S.C.A. 18 , § 40103 "use of airspace"
- "49 U.S.C. 40103(a)(1)". Archived from the original on 10 April 2009. Retrieved 2009-04-07.
- 49 U.S.C § 40110
- "Argent v. U.S. 124 F.3rd 1277,1281 (1997) citing Lacey v. United States, 219 Ct.Cl. 551, 595 F.2d 614, 616 (1979) (treating 500 feet as line of demarcation between compensatable property taking and non-compensatable overflights); Matson v. United States, 145 Ct.Cl. 225, 171 F.Supp. 283, 286 (1959) (providing compensation for flights under 500 feet).Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798, 801 (1963) (allowing claims based on flights below 500ft, while denying those based on flights over 500ft).”
- U.S. v Causby 328 U.S. 256,264-266 (1946) and Causby v U.S. 75 F.262 Ct.Cl (1948)
- U.S. v Causby 328 U.S. 256,264-266 (1946) and Causby v U.S. 75 F.262 Ct.Cl (1948)
- Doc. No. 18334, 54 FR 34294, Aug. 18, 1989, as amended by Amdt. 91-311, 75 FR 5223, Feb. 1, 2010
- F.R. 2016 6-28-2016 Pgs 42063- 42214 DOC #: 2016-15079
- 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.
- McCown, James (September 4, 2002). "Boston Air Rights". Architecture Week. 113 (4).
- » Community-Wide Hollywood Central Park Meeting
- 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.
- 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 February 1998.
- New York City Air Rights Map
- Herships, Sally (November 18, 2013). "The Air Up There". Marketplace. Retrieved 18 November 2013. On the current state of New York City's air rights and their market.
- Troy A. Rule, Airspace and the Takings Clause, 90 Washington University Law Review 421 (2012).
Transferable Development Rights (TDR)
- Explanation of this concept from Eastern Michigan University
- Explanation of this concept from Ohio State University
- TDR "Field Guide"
- Transfer of Development Rights for Balanced Development from Lincoln Institute of Land