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 are a type of property interest in real estate, referring to the "space" above land on the earth's surface. Generally speaking, owning or renting land or a building gives one the right to use and develop the space above the land.

This legal concept is encoded in the Latin phrase Cuius est solum, eius est usque ad caelum 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.

Air Travel[edit]

Further information: Flyover rights

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 limit on the height of property rights and a public right to transit through higher altitudes.[1] Legislators established a public easement at higher altitudes through an area which had long been considered "owned" by landowners, but the courts in the united states required just compensation to landowners for any property taken below 500 feet.

  • New technologies have again raised questions about ownership of "space" and the bounds of national sovereignty. With the advent of space travel above earths atmosphere, the height at which national sovereignty could regulate transit is often debated. Similarly, the use of drones has clouded long held property interest associated with land title at lower altitudes.

United States[edit]

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 control all "public" 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."[3] For non-public airspace, congress has provided authority for the the FAA to purchase non-public airspace near airports to accommodate planes taking off and landing.[4] The "navigable airspace" in which the public has a right of transit with out effecting a landowners property rights has been established by law and the US Courts at a height of 500 ft in urban or suburban areas,[5] and 300 feet above the surface or tallest structure in rural areas.[6] The exact altitude(s) at which the airspace over private land becomes "public" airspace, or where the upward bounds of national sovereignty extends remains unsettled. 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 nuisance claims against low flying aircraft. This is called a navigation easement and requires the FAA to pay just compensation to the landowner.

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 controls use of the airspace above their property in connection with their uninterrupted use and enjoyment of the underlying land. In other words, a person's real property ownership includes a reasonable amount of the private airspace above the property in order to prevent nuisance. A landowner may make any legitimate use of their property that they want, even if it interferes with aircraft overflying the land."[7]

The low cost of unmanned aerial vehicles (AKA Drones) in the 2000s revived legal questions of what activities are permissible at low altitude and with whose permission.[8] Although the FAA reestablished that public, or navigable, airspace is the space above 500 feet,[9] In 2016, The FAA set regulations that "allow" drones to fly below 400 feet to prevent interference with planes above that height, and makes it a felony for a landowner to block drones flying through the lower altitudes regardless of ownership.[10]

Railroads and air rights[edit]

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.[11]

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[edit]

Similar to railroads, builders of highways have proposed selling their air rights; Boston did this in connection with the Big Dig.[12]

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.[13]

Air rights in development[edit]

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.[14]

See also[edit]

References[edit]

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)". Archived from the original on 10 April 2009. Retrieved 2009-04-07. 
  4. ^ 49 U.S.C § 40110
  5. ^ "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 compensable and non-compensable 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).”
  6. ^ U.S. v Causby 328 U.S. 256,264-266 (1946) and Causby v U.S. 75 F.262 Ct.Cl (1948)
  7. ^ "Small airports and the law". Retrieved 2013-12-06. 
  8. ^ http://www.npr.org/templates/transcript/transcript.php?storyId=317074394
  9. ^ Doc. No. 18334, 54 FR 34294, Aug. 18, 1989, as amended by Amdt. 91-311, 75 FR 5223, Feb. 1, 2010
  10. ^ F.R. 2016 6-28-2016 Pgs 42063- 42214 DOC #: 2016-15079
  11. ^ 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. 
  12. ^ McCown, James (September 4, 2002). "Boston Air Rights". Architecture Week. 113 (4). 
  13. ^ » Community-Wide Hollywood Central Park Meeting
  14. ^ 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. 

External links[edit]

Transferable Development Rights (TDR)