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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 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 ''Cuius est solum, eius est usque ad coelum et ad inferos'' ( Latin for "whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell") is a principle of property law, stating that property holders have rights not only to th ...
'' ("''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 __NOTOC__ Accursius (in Italian ''Accursio'' or ''Accorso di Bagnolo''; c. 11821263) was a Roman jurist. He is notable for his organization of the glosses, the medieval comments on Justinian's codification of Roman law, the ''Corpus Juris Civ ...
; it was notably popularized in common law in '' Commentaries on the Laws of England'' (1766) by
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family in ...
; see origins of phrase for details.


Air travel

Property rights defined by points on the ground once extended indefinitely upward. This notion remained unchallenged before
air travel Air travel is a form of travel in vehicles such as airplanes, jet aircraft, helicopters, hot air balloons, blimps, gliders, hang gliders, parachutes, or anything else that can sustain flight.
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. 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

In the United States, the Federal Aviation Administration (FAA) has the sole authority to regulate all "navigable
airspace Airspace is the portion of the atmosphere controlled by a country above its territory, including its territorial waters or, more generally, any specific three-dimensional portion of the atmosphere. It is not the same as aerospace, which is the ...
", exclusively determining the rules and requirements for its use. Specifically, the Federal Aviation Act provides that: "The
United States Government The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a feder ...
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." 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." 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 in urban or suburban areas, and above the surface or tallest structure in rural areas 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. 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 or by state government, or by the aerial trespasser. 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. The low cost of
unmanned aerial vehicle An unmanned aerial vehicle (UAV), commonly known as a drone, is an aircraft without any human pilot, crew, or passengers on board. UAVs are a component of an unmanned aircraft system (UAS), which includes adding a ground-based controller ...
s (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. There has never been a direct challenge to the federal governments 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. The FAA has also reiterated that it has sole authority to regulate this right. The owner of the land has the exclusive development rights in the 'space' above his or her lands. 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 his or her 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 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.


United Kingdom

Airspace around a property in most of the 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. This can include overhanging trees or signage from a neighbouring property, or movement such as a crane swinging overhead. However the right to enjoy this airspace is not an automatic right to build into that space without 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 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). The sale of air rights in the UK is generally unusual but it is legal, and becoming increasingly common.


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 Grand Central Terminal (GCT; also referred to as Grand Central Station or simply as Grand Central) is a commuter rail terminal located at 42nd Street and Park Avenue in Midtown Manhattan, New York City. Grand Central is the southern terminu ...
in New York City, where William J. Wilgus, chief engineer of the
New York Central and Hudson River Railroad The New York Central Railroad was a railroad primarily operating in the Great Lakes and Mid-Atlantic regions of the United States. The railroad primarily connected greater New York and Boston in the east with Chicago and St. Louis in the Midw ...
, 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. This is how the
MetLife Building The MetLife Building (also 200 Park Avenue and formerly the Pan Am Building) is a skyscraper at Park Avenue and 45th Street (Manhattan), 45th Street, north of Grand Central Terminal, in the Midtown Manhattan neighborhood of New York City. Desi ...
came to be built next to the station, after public protest regarding the demolition of Grand Central Terminal. This approach has been used in Chicago since the construction of the Prudential Building in 1955 above active railroad tracks of the Illinois Central Railroad. In 2017, to the west of the Chicago River,
River Point River Point, previously known as 200 North Riverside Plaza, is a 52-story 730 ft. (213 m) tall skyscraper in Chicago, Illinois, located at 444 West Lake Street. The 52-story building has of floor space. It sits on air rights above ac ...
and
150 North Riverside 150 North Riverside Plaza is a highrise building in Chicago, Illinois, completed in 2017 and anchored by William Blair and Co. The building is 54 stories tall. The building occupies a two-acre site on the west bank of the Chicago River, whose siz ...
were built above tracks leading to the Amtrak station. Building on platforms over railroad tracks is still potentially very profitable. In the mid-2000s, New York's Metropolitan Transportation Authority (MTA) attempted to sell air rights to the New York Jets so that they could build the
West Side Stadium West Side Stadium (also known as the New York Sports and Convention Center) was a proposed football and Olympic stadium to be built on a platform over the rail yards on the West Side of Manhattan in New York City. The stadium would have been ...
over Manhattan's
West Side Yard The West Side Yard (officially the John D. Caemmerer West Side Yard) is a rail yard of 30 tracks owned by the Metropolitan Transportation Authority on the west side of Manhattan in New York City. Used to store commuter rail trains operated by ...
, near
Penn Station Pennsylvania Station is a name applied by the Pennsylvania Railroad to several of its grand passenger terminals. Pennsylvania Station or Penn Station may also refer to Current train stations * Baltimore Penn Station * Pennsylvania Station (Cinc ...
, as part of the
Hudson Yards Redevelopment Hudson Yards is a neighborhood on the West Side of Midtown Manhattan, bounded roughly by 30th Street in the south, 41st Street in the north, the West Side Highway in the west, and Eighth Avenue in the east.Chapter 11: Figures The area is the ...
. The Hudson Yards mega-development was eventually built over the rail yard. In Brooklyn, the
Barclays Center Barclays Center is a multi-purpose indoor arena in the New York City borough of Brooklyn. The arena is home to the Brooklyn Nets of the National Basketball Association and the New York Liberty of the Women's National Basketball Association. T ...
and
Pacific Park Pacific Park is an oceanfront amusement park located in Santa Monica, California. The park, located on the Santa Monica Pier, looks directly out on the Pacific Ocean, in the direction of Catalina Island. It is the only amusement park directly l ...
have been constructed over Atlantic Yards.


Roads and air rights

Similar to railroads, builders of highways have proposed selling their air rights;
Boston Boston (), officially the City of Boston, is the state capital and most populous city of the Commonwealth of Massachusetts, as well as the cultural and financial center of the New England region of the United States. It is the 24th- most p ...
did this in connection with the
Big Dig The Central Artery/Tunnel Project (CA/T Project), commonly known as the Big Dig, was a megaproject in Boston that rerouted the Central Artery of Interstate 93 (I-93), the chief highway through the heart of the city, into the 1.5-mile (2.4&n ...
. The
city of Los Angeles Los Angeles ( ; es, Los Ángeles, link=no , ), often referred to by its initials L.A., is the largest city in the state of California and the second most populous city in the United States after New York City, as well as one of the world ...
funded a $100,000 feasibility study RFP in January 2007 to explore building a freeway cap park in
Hollywood Hollywood usually refers to: * Hollywood, Los Angeles, a neighborhood in California * Hollywood, a metonym for the cinema of the United States Hollywood may also refer to: Places United States * Hollywood District (disambiguation) * Hollywoo ...
. The park would be built above
US highway 101 U.S. Route 101, or U.S. Highway 101 (US 101), is a north–south United States Numbered Highway that runs through the states of California, Oregon, and Washington, on the West Coast of the United States. It is also known as (The Royal Roa ...
and contain of new parkland.» Community-Wide Hollywood Central Park Meeting
/ref>


See also

*
Ancient lights Right to light is a form of easement in English law that gives a long-standing owner of a building with windows a right to maintain an adequate level of illumination. The right was traditionally known as the doctrine of "ancient lights". It is a ...
* ''
Burlesque A burlesque is a literary, dramatic or musical work intended to cause laughter by caricaturing the manner or spirit of serious works, or by ludicrous treatment of their subjects.
''—a 2010 American film in which air rights play significant part * Chicago Convention on International Civil Aviation *
Countryside and Rights of Way Act 2000 The Countryside and Rights of Way Act 2000 (c. 37), known informally as the CRoW Act or "Right to Roam" Act is a United Kingdom Act of Parliament affecting England and Wales which came into force on 30 November 2000. Right to roam The Act imp ...
(in the UK) *
Crown land Crown land (sometimes spelled crownland), also known as royal domain, is a territorial area belonging to the monarch, who personifies the Crown. It is the equivalent of an entailed estate and passes with the monarchy, being inseparable from it. ...
(see "logging and mineral rights" under Canada) *
Easement An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a property ...
("the right of use over the real property of another") * Freedom to roam * Land rights * Littoral rights: rights to ocean and beach in front of property *
Prior appropriation water rights Prior appropriation: In water rights, the legal doctrine of prior appropriation holds that the first person to take a quantity of water from a water source for " beneficial use" (agricultural, industrial or household) has the right to continue to ...
*
Riparian water rights Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law herit ...
: rights to river water in front of property *
Subsurface rights Mineral rights are property rights to exploit an area for the minerals it harbors. Mineral rights can be separate from property ownership (see Split estate). Mineral rights can refer to sedentary minerals that do not move below the Earth's surfac ...
: rights to oil or minerals under property *
Transferable development rights Transferable development rights (TDR) is a method by which developers can purchase the development rights of certain parcels within a designated "sending district" and transfer the rights to another "receiving district" to increase the density of t ...
* '' United States v. Causby'' * "Up to Heaven and Down to Hell", an episode of '' Elementary'' where air rights play a significant part


References

Notes


External links


Types of development rights


* ttps://www.straightdope.com/21342266/can-i-declare-a-no-flight-zone-over-my-house Can I declare a "no-flight zone" over my house? ''The Straight Dope'', 13 February 1998.
New York City Air Rights Map
* 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)

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 {{Property navbox, state=collapsed Aviation law Environmental law Property law Rights