All I Deed is the Air I Breath

(With apologies to the Hollies)

How far do one’s private property rights extend?

For most property owners, the common understanding of property rights is limited to what they can find written on their deed. Deeds, or the documents evidencing title to real estate, describe real property by its boundaries, along with the rights and privileges (or restrictions to those rights and privileges) associated with the use of a specific parcel.

Perhaps the property includes mineral rights. In that case, the deed describes the rights to use the land below the surface. Property owners should also understand the rights that extend above their immediate living areas. Real property generally includes the surface of the land, the buildings and improvements upon that land, the subsurface, and the airspace above it. Americans living in more urban settings, especially, are learning that air rights are an important and valuable facet of property ownership.

Before the advent of commercial air travel, this property right spanned an indefinite extent. Under common law, private property owners held a right in the air space extending vertically above their property under what’s known as the {ad coelum} doctrine (after the Latin “{Cuius est solum, eius est usque ad coelum et ad inferos},” or, “Whoever owns the soil, it is theirs up to heaven and down to hell” [2]). In 1926, though, the Air Commerce Act restricted the unlimited character of private property rights by designating the airspace above the minimum altitude of flight as “a nationally-shared common area” [1].

Property records typically establish, in explicit terms, the ways we can’t use our property, whether through stated restrictions or by recorded easements. Oftentimes, these restrictions limit the owner’s rights to air space. For example, those living in residential areas may be limited by height restrictions established in municipal zoning laws. Others may be subject to the bylaws of a homeowner’s association.

Air rights are increasingly important in urban areas, too, where developers expand profit potential by building taller structures that offer expansive views, or more innovatively-designed structures to take advantage of previously unusable space. Municipal zoning codes may restrict rights to airspace above certain parcels. Perhaps local preservation standards prevent vertical improvements to a historical property.

In some of these cases, transferring development rights may enable owners to sell their unused rights for cash, or obtain another’s air rights for development; the option to transfer airspace as a separate entity, apart from ownership of the surface of the land, depends on the jurisdiction. In our densest cities, creative solutions have turned columnar skylines into a veritable Tetris of buildings designed to maximize usable living area. For example, a developer may negotiate to acquire the air rights of a nearby parcel, using the extra space to construct a cantilever (the topic of a 2014 {New York Times} piece [3]).

Development rights are typically sold and transferred in one of two ways. The first is through a zoning lot merger, in which two adjacent zoning lots are merged into one so that any unused development rights on one lot can be used by the other. Zoning lots are comprised of two or more tax lots. For example, a New York condominium/co-op building occupies one zoning lot, and each unit represents an individual tax lot. Zoning codes often place height limitations on structures, and developers may be able to buy the air rights or development rights of an adjacent zoning lot, transferring that lot’s benefits [4].

The other method is a bit more complex. A transfer of development rights (TDR) involves a contributing site and a receiving site. Development rights are transferred from the contributing zoning lot to the receiving zoning lot, but these lots do not have to be adjacent. The owner sells the unused development rights from the contributing site, and the receiving site (and its developer) gain additional options for using the land. As an example, a municipality may sell the air rights above a public space or right of way to a developer, who then builds a foot bridge to connect properties on either side of the street [1].

Air rights are a complicated aspect of property law, and they are becoming increasingly relevant as cities look for creative solutions to meet housing demands and address the tension between private property owners’ rights and the associated limitations. Today, new technologies (drones used in delivery service, for example [5]) continue to complicate private property rights as the vertical space above land becomes an increasingly lucrative asset. Looking to the future, one thing may be certain: air is a hot commodity.







Consulted, not referenced