Air Rights Introduction

What are Air Rights ?

All real property is comprised of three elements: air rights, surface rights and subsurface rights sometimes referred to as “mineral rights”. The three elements of property are described by the ancient legal maxim in common law “Cuius Est Solum Eius Est Usque Ad Coelum Et Ad Inferos” which is a Latin “for whoever owns the soil, it is theirs up to heaven and down to hell.” The complex legal history of this doctrine will be explored in a following FAQ section.

Real property is defined in three dimensions (height, width, length). Intuitively land is thought of as having two dimensions because the height component is intangible.

Why are Air Rights important ?

Air Rights are part of property rights transferred with title. There is a common misconception that all air space is “res nullis” meaning owned by nobody. While it is true that a public easement exists for high-altitude aviation the traditionally accepted divide between public and private air space is 1000 feet in urban areas and 500 feet in rural areas. Below these altitudes air space is considered to be private property where encroachments have typically been litigated as either takings, when involving a government agency, or as simple trespass.

What is an Avigation Easement ?

Often when public airports expand they acquire land for runways, new hangars etc. In certain situations where the new flight paths of arriving and departing planes pass over private property the airport will seek an “avigation easement”. This type of easement is a contract granting overflight privileges to the airport in return for compensation to the owner and the waiver of liability for noise and smoke complaints.

Do airplanes violate Air Rights when flying at high altitudes ?

No because a public easement exists for air traffic above certain altitudes.

Can Air Rights be bought and sold like Mineral Rights ?

To date there is little historical or legal precedent for air rights transactions beyond standard easements. Theoretically Air Rights can be leased like any other property but the issue of severability has yet to be adequately explored as with mineral rights which are often transacted separately from surface rights.

Are drones allowed to fly over private property ?

Under existing U.S. laws drones flying over private property without permission are liable for trespass. It is illegal for the property owner to destroy or damage the trespassing drone. Numerous states like Nevada and Oregon have enacted statutes that prohibit drone overflights of private property below 250 feet without permission.

Comment on this FAQ