# Air rights

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Type of real estate ownership right

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An example of air rights transfer between properties: a high-rise building extends over a four-story building in [New York City](/source/New_York_City).

In [real estate](/source/Real_estate), **air rights** are the property interest in the "space" above the Earth's surface. Generally speaking, owning or renting land or a [building](/source/Building) includes the right to use and build in 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](/source/Cuius_est_solum%2C_eius_est_usque_ad_coelum_et_ad_inferos)* ("*Whoever owns the soil, it is theirs up to Heaven and down to Hell*."), which appears in [medieval Roman law](/source/Medieval_Roman_law) and is credited to 13th-century [glossator](/source/Glossator) [Accursius](/source/Accursius); it was notably popularized in [common law](/source/Common_law) in *[Commentaries on the Laws of England](/source/Commentaries_on_the_Laws_of_England)* (1766) by [William Blackstone](/source/William_Blackstone); see [origins of phrase](/source/Cuius_est_solum%2C_eius_est_usque_ad_coelum_et_ad_inferos#Origins) for details. In the 20th century, the splitting of air-rights from the underlying property became an important issue for property development, particularly for skyscrapers in some crowded cities.

## Air travel

Further information: [Flyover rights](/source/Flyover_rights)

Property rights defined by points on the ground once extended indefinitely upward. This notion remained unchallenged before [air travel](/source/Air_travel) became popular in the early 20th century. To promote air transport, legislators established a public easement for transit at high altitudes, regardless of real estate ownership.[1]

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.

### United States

A building is cantilevered over two other buildings in [New York City](/source/New_York_City)

In the [United States](/source/United_States), the [Federal Aviation Administration](/source/Federal_Aviation_Administration) (FAA) has the sole authority to regulate all "navigable [airspace](/source/Airspace)" exclusively determining the rules and requirements for its use.[2] Specifically, the [Federal Aviation Act](/source/Federal_Aviation_Act) provides that: "The [United States Government](/source/Federal_government_of_the_United_States) has exclusive sovereignty of airspace of the United States" and "A citizen of the United States has a public right of transit through the navigable airspace."[3] The "navigable airspace" in which the public has a right of transit has been defined as "the airspace at or above the minimum altitudes of flight that includes the airspace needed to ensure safety in the takeoff and landing of aircraft."[4]

The exact altitude(s) at which the airspace over private land can become subject to "substantial impairment" is often debated. Case law in the past has used the height of 500 ft (150 m) in urban or suburban areas,[5] and 360 ft (110 m) above the surface or tallest structure in rural areas[6] as the demarcation of where impairment of property rights can occur. At those times, this constituted the limits of "navigable airspace". However, the bulk of more recent decisions, which take precedent, hold that taking can occur regardless of if the flight occurred within navigable airspace or not and only impairment of property need be considered.[7] This is especially important as *some* aircraft (crewed and uncrewed) now have no minimum flight altitudes making virtually all airspace "navigable".

Financial compensation is owed property owners when the use of their property is substantially impaired by the federal government[8] or by state government,[9] or by the aerial trespasser.[10]

Congress has provided authority for the FAA to provide funds to purchase property interests in airspace (navigation easements) near airports to accommodate planes taking off and landing.[11]

The advent of low-cost [unmanned aerial vehicles](/source/Unmanned_aerial_vehicle) (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.[12] There has never been a direct challenge to the federal government's vesting of the right for citizens to travel through navigable airspace. As such, the status quo is only permission from the FAA (through regulation) is required. However, existing property rights over private property still allow for civil claims of taking when property use is "substantially impaired" by the use of the airspace.[13] The FAA has also reiterated that it has sole authority to regulate this right.[14]

The owner of the land has the exclusive development rights in the 'space' above their land. Under common law, building a 'hangover' that breaks the vertical plane of a neighbor's property is a trespass and the property owner has the right to remove the offending structure. The airspace is property and retains developmental rights which can be sold or transferred. Thus in a dense downtown area, each building owner in the area may have the right to thirty-five stories of airspace above their own property. In one possible scenario, owners of an older 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. In a different scenario, a skyscraper developer may purchase the unused airspace from an adjacent landowner in order to develop a broader building. In November 2005, [Christ Church in New York](/source/Christ_Church_United_Methodist) sold its vertical development rights for a record $430 per square foot, making more than $30 million on the sale for the right to build in the space over its building.[15]

### United Kingdom

Airspace around a property in most of the [United Kingdom](/source/United_Kingdom) is divided into the "lower stratum" and "upper stratum". The lower stratum is the area around and above a property that the owner can expect to reasonably enjoy - in other words, interference by others into this area is usually deemed an act of [trespass](/source/Trespass). This can include overhanging trees or signage from a neighbouring property, or movement such as a crane swinging overhead.[16][17] However the right to enjoy this airspace is not an automatic right to build into that space without [planning permission](/source/Planning_permission).

The upper stratum is the space above which ordinary use and enjoyment by the property owner is reasonable, and is loosely defined in the Section 76 Civil Aviation Act 1982 as starting between 500 and 1,000 feet (150 and 300 m) above the roof level of the property. In England, Wales and Northern Ireland, property owners have no rights to the upper stratum, but in Scotland the rights are generally extended *a coelo usque ad centrum* (from the sky to the centre).[18]

The sale of air rights in the UK is generally unusual but it is legal, and becoming increasingly common.[19]

## Railroads and air rights

[Railroads](/source/Rail_transport) were the first companies to realize the potential of making money from their air rights. A good example of this is [Grand Central Terminal](/source/Grand_Central_Terminal) in [New York City](/source/New_York_City), where [William J. Wilgus](/source/William_J._Wilgus), chief engineer of the [New York Central and Hudson River Railroad](/source/New_York_Central_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 construction 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](/source/Grand_Central_Tower). The [MetLife Building](/source/MetLife_Building) came to be built next to the station, after public protest regarding the original plan to demolish the terminal.[20] This approach has been used in Chicago since the construction of what is now [Riverside Plaza](/source/Riverside_Plaza_(Chicago)) in 1929, as well as [Prudential Building](/source/One_Prudential_Plaza) in 1955 above active railroad tracks of the Illinois Central Railroad.[21] In 2017, to the west of the Chicago River, [River Point](/source/River_Point) and [150 North Riverside](/source/150_North_Riverside) were built above tracks leading to the Amtrak station.[*[citation needed](https://en.wikipedia.org/wiki/Wikipedia:Citation_needed)*]

Building on platforms over railroad tracks is still potentially very profitable. In the mid-2000s, New York's [Metropolitan Transportation Authority](/source/Metropolitan_Transportation_Authority) (MTA) attempted to sell air rights to the [New York Jets](/source/New_York_Jets) so that they could build the [West Side Stadium](/source/West_Side_Stadium) over Manhattan's [West Side Yard](/source/West_Side_Yard), near [Penn Station](/source/Pennsylvania_Station_(New_York_City)), as part of the [Hudson Yards Redevelopment](/source/Hudson_Yards_Redevelopment). The [Hudson Yards mega-development](/source/Hudson_Yards_(development)) was eventually built over the rail yard. In Brooklyn, the [Barclays Center](/source/Barclays_Center) and [Pacific Park](/source/Pacific_Park%2C_Brooklyn) have been constructed over Atlantic Yards.[*[citation needed](https://en.wikipedia.org/wiki/Wikipedia:Citation_needed)*]

## Roads and air rights

Similar to railroads, builders of [highways](/source/Highway) have proposed selling their air rights; [Boston](/source/Boston) did this in connection with the [Big Dig](/source/Big_Dig_(Boston%2C_Massachusetts)).[22]

The [city of Los Angeles](/source/Los_Angeles) funded a $100,000 feasibility study [RFP](/source/RFP) in January 2007 to explore building a freeway cap park in [Hollywood](/source/Hollywood%2C_Los_Angeles). The park would be built above [US highway 101](/source/U.S._Route_101_in_California) and contain 24 acres (97,000 m2) of new parkland.[23]

## See also

- [Ancient lights](/source/Ancient_lights) (legal doctrine)

- *[Burlesque](/source/Burlesque_(2010_American_film))*—a 2010 American film in which air rights play significant part

- [Chicago Convention on International Civil Aviation](/source/Chicago_Convention_on_International_Civil_Aviation)

- [Countryside and Rights of Way Act 2000](/source/Countryside_and_Rights_of_Way_Act_2000) (in the UK)

- [Crown land](/source/Crown_land) (see "logging and mineral rights" under [Canada](/source/Crown_land#Canada))

- [Easement](/source/Easement) ("the right of use over the real property of another")

- [Freedom to roam](/source/Freedom_to_roam)

- [Land rights](/source/Land_rights)

- [Littoral rights](/source/Littoral_rights): rights to ocean and beach in front of property

- [Prior appropriation water rights](/source/Prior_appropriation_water_rights)

- [Riparian water rights](/source/Riparian_water_rights): rights to river water in front of property

- [Subsurface rights](/source/Mineral_rights): rights to oil or minerals under property

- [Transferable development rights](/source/Transferable_development_rights)

- *[United States v. Causby](/source/United_States_v._Causby)*

## References

**Notes**

1. **[^](#cite_ref-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)

1. **[^](#cite_ref-2)** 49 U.S.C. 180, 49 U.S.C.A. 18, § 40103 "use of airspace"

1. **[^](#cite_ref-3)** ["49 U.S.C. 40103(a)(1)"](https://www.law.cornell.edu/uscode/text/49/40103-). Retrieved 7 April 2009.

1. **[^](#cite_ref-4)** ["Pub.L. No. 85-726"](https://www.govinfo.gov/content/pkg/STATUTE-72/pdf/STATUTE-72-Pg731.pdf) (PDF). Retrieved 15 January 2020.

1. **[^](#cite_ref-5)** Lacey v. United States 595 F.2d 614 (Fed. Cir. 1979)

1. **[^](#cite_ref-6)** Causby v U.S. 75 F.262 Ct.Cl (1948)

1. **[^](#cite_ref-7)** Branning v. United States 654 F.2d 88 (Fed. Cir. 1981) Held a taking occurred from air travel inside of navigable airspace (600') The present case is a case, as the court foresaw in *Aaron v. United States*, 160 Ct.Cl. at 301, 311 F.2d at 801, in which "the unavoidable damage [reduction of the highest and best use] to a person's property occasioned by [the noise created during] **travel in the navigable air space** [is] so severe as to amount to a practical destruction of it." This is a case of first impression in which the court may consider the altitude of the flights over the property, but must give primary consideration to the effect of aircraft noise where the Government itself has adopted and published standards of compatibility of use of the subjacent property. Since the subjacent property owner has suffered a diminution of the value of the property in this case, there has been a taking of an easement over and through the airspace subjacent the property of the plaintiff. "It is abundantly clear that under the law established by Causby, Griggs, and Aaron a taking has occurred in this case."

1. **[^](#cite_ref-8)** US v. Causby 328 U.S. 256

1. **[^](#cite_ref-9)** Griggs v. Allegheny County, 369 U.S. 84

1. **[^](#cite_ref-10)** Argent v. U.S. 124 F.3rd 1277,1281 (1997) citing many[10]. Brown v United States 3 F.3d 1100 Ct Cl. (1996). also Branning v. U.S., 654 F.2d 88, 97-8 (1981)

1. **[^](#cite_ref-11)** 49 U.S.C § 40110

1. **[^](#cite_ref-12)** ["Drone Wars: Who Owns The Air?"](https://www.npr.org/sections/money/2014/05/30/317074394/drone-wars-who-owns-the-air). *NPR.org*. Retrieved 25 July 2019.

1. **[^](#cite_ref-13)** Branning v. United States, 654 F.2d 88, 97-98 (Ct. Cl. 1981, Aaron v. United States, 311 F.2d 798, 801 Ct. Cl. (1963); Brown v United States 3 F.3d 1100 Ct Cl. (1996).

1. **[^](#cite_ref-14)** ["FAA press release"](https://www.faa.gov/news/press_releases/news_story.cfm?newsId=22938&omniRss=press_releasesAoc&cid=102_P_R). Retrieved 16 February 2024.

1. **[^](#cite_ref-15)** Bagli, Charles V. (30 November 2005). ["$430 a Square Foot, for Air? Only in New York Real Estate"](https://www.nytimes.com/2005/11/30/nyregion/30air.html). *The New York Times*. Retrieved 22 August 2009.

1. **[^](#cite_ref-16)** ["Property Law Summary"](http://www.lawskool.co.uk/content/uk_property_law_sample_v1.0.pdf) (PDF). *Lawskool UK*. [Archived](https://web.archive.org/web/20210825101419/http://www.lawskool.co.uk/content/uk_property_law_sample_v1.0.pdf) (PDF) from the original on 25 August 2021. Retrieved 21 August 2021.

1. **[^](#cite_ref-17)** ["What is legally my land"](https://www.inbrief.co.uk/land-law/land-ownership/). *InBrief.co.uk*. Retrieved 25 August 2021.

1. **[^](#cite_ref-18)** ["Dictionary of Scottish Land Law Terms - Scots Property Law Glossary"](https://www.scottishlaw.org.uk/lawscotland/abscotslawland.html). *www.scottishlaw.org.uk*. Retrieved 25 August 2021.

1. **[^](#cite_ref-19)** ["Why more private developers are looking to buy up the air rights above your building and make a fortune"](https://www.cityam.com/why-more-private-developers-looking-buy-up-air-rights-above/). *CityAM*. 28 September 2016. Retrieved 25 August 2021.

1. **[^](#cite_ref-20)** Gray, Christopher (11 October 1998). ["Grand Central Terminal; The 23-Story, Beaux-Arts 1913 Tower That Wasn't"](https://www.nytimes.com/1998/10/11/realestate/streetscapes-grand-central-terminal-23-story-beaux-arts-1913-tower-that-wasn-t.html). *The New York Times*. Retrieved 22 August 2009.

1. **[^](#cite_ref-21)** Fuller, Ernest (9 December 1955). ["Dedicate New Prudential 41 Story Building"](https://web.archive.org/web/20170904105405/http://archives.chicagotribune.com/1955/12/09/page/13/article/dedicate-new-prudential-41-story-building/). *Chicago Tribune*. Archived from [the original](http://archives.chicagotribune.com/1955/12/09/page/13/article/dedicate-new-prudential-41-story-building) on 4 September 2017. Retrieved 7 September 2017.

1. **[^](#cite_ref-22)** McCown, James (4 September 2002). ["Boston Air Rights"](https://web.archive.org/web/20170501224101/http://www.architectureweek.com/2002/0904/). *Architecture Week*. **113** (4). Archived from [the original](http://www.architectureweek.com/2002/0904/) on 1 May 2017. Retrieved 29 December 2005.

1. **[^](#cite_ref-23)** ["Hollywood Central Park |"](https://hollywoodcentralpark.org/). *hollywoodcentralpark.org*. Retrieved 16 February 2024.

## External links

- [Types of development rights](https://web.archive.org/web/20051226030433/http://www.fool.com/homecenter/find/find08.htm)

- [Air rights over Chicago's Merchandise Mart (an early example of air rights regulation)](https://web.archive.org/web/20060113081657/http://www.merchandisemart.com/marchitecture/air_rights.html)

- [Can I declare a "no-flight zone" over my house?](https://www.straightdope.com/21342266/can-i-declare-a-no-flight-zone-over-my-house), *The Straight Dope*, 13 February 1998.

- [New York City Air Rights Map](http://www.propertyshark.com/mason/ny/New-York-City/Maps/Air-Rights)

- Herships, Sally (18 November 2013). ["The Air Up There"](https://web.archive.org/web/20131122213258/http://www.marketplace.org/topics/wealth-poverty/tall-towers-versus-dark-park-new-york-city-1). *[Marketplace](/source/Marketplace_(radio_program))*. Archived from [the original](http://www.marketplace.org/topics/wealth-poverty/tall-towers-versus-dark-park-new-york-city-1) on 22 November 2013. 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).](https://archive.today/20140604203322/http://digitalcommons.law.wustl.edu/lawreview/vol90/iss2/4)

**Transferable Development Rights (TDR)**

- [Explanation of this concept](https://web.archive.org/web/19991104202329/http://www.emich.edu/public/geo/557book/d244.tdr.html) from [Eastern Michigan University](/source/Eastern_Michigan_University)

- [Explanation of this concept](https://web.archive.org/web/20010320095447/http://ohioline.osu.edu/cd-fact/1264.html) from [Ohio State University](/source/Ohio_State_University)

- [TDR "Field Guide"](https://web.archive.org/web/20021213233159/http://www.realtor.org/libweb.nsf/pages/fg804)

- [Transfer of Development Rights for Balanced Development](http://www.lincolninst.edu/pubs/424_Transfer-of-Development-Rights-for-Balanced-Development-) from Lincoln Institute of Land

v t e Property By owner Collective Common Communal Community Crown Customary Cooperative Private Public Self Social State Unowned By nature Croft Estate (landed) Intangible Intellectual indigenous Personal Tangible real Commons Common land Common-pool resource Digital Global Information Knowledge Theory Bundle of rights Commodity fictitious commodities Common good (economics) Excludability First possession appropriation homestead principle Free-rider problem Game theory Georgism Gift economy Labor theory of property Law of rent rent-seeking Legal plunder Natural rights Ownership Property rights primogeniture usufruct women's Right to property Rivalry Tragedy of the commons anticommons Applications Acequia (watercourse) Ejido (agrarian land) Estate legal literary real Forest types Huerta Inheritance executor Land tenure Property law alienation easement restraint on alienation real estate title Rights Air Fishing Forest-dwelling (India) Freedom to roam Grazing pannage Hunting Land aboriginal indigenous squatting Littoral Mineral Bergregal Right of way Water prior-appropriation riparian Disposession/ redistribution Bioprospecting biopiracy Collectivization Eminent domain Enclosure Eviction Expropriation Farhud Forced migration population transfer repatriation Illegal fishing Illegal logging Land Back Land reform Legal plunder Piracy Poaching Primitive accumulation Privatization Regulatory taking Slavery bride buying human trafficking spousal husband-selling wife selling wage Tax burden incidence inheritance optimal poll progressive property regressive Theft Yard-sale model Scholars (key work) Frédéric Bastiat The Law Ronald Coase Friedrich Engels The Origin of the Family, Private Property and the State Henry George Progress and Poverty Garrett Hardin David Harvey John Locke Two Treatises of Government Karl Marx Das Kapital Marcel Mauss The Gift John Stuart Mill Elinor Ostrom Karl Polanyi The Great Transformation Pierre-Joseph Proudhon What Is Property? David Ricardo Murray N. Rothbard The Ethics of Liberty Jean-Jacques Rousseau The Social Contract Adam Smith The Wealth of Nations Categories: Property Property law by country

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Adapted from the Wikipedia article [Air rights](https://en.wikipedia.org/wiki/Air_rights) by Wikipedia contributors ([contributor history](https://en.wikipedia.org/wiki/Air_rights?action=history)). Available under [Creative Commons Attribution-ShareAlike 4.0 International](https://creativecommons.org/licenses/by-sa/4.0/). Changes may have been made.