Most of the time, you only hear about “air rights” in crowded
urban centers, such as New York City, where vertical living is the norm and
space is at a premium. Still, every homeowner should have an understanding of
air rights in general. Do you own the air above your home by default? And if
so, what can you do with those rights?
Most people own the air rights
above their homes, up to a point.
In real
estate, air rights, which refer to the empty space above a property, are one
type of development right. Before the 20th century, anyone owning property also
owned the unlimited air rights above it, as well as the ground beneath it. Then
and now, most property ownership laws are based on the Latin doctrine, “For
whoever owns the soil, it is theirs up to heaven and down to hell.”
But with the arrival of airplanes in the 20th century, air
rights became more limited. Homeowners only had rights to the airspace above
their home that they could reasonably use. This restriction was necessary;
without it the airline industry would never have taken off because airplanes
would be trespassing everywhere they flew.
Your air rights probably may
not enable you to build higher.
Every town and/or neighborhood has zoning restrictions. Those
restrictions generally prevent a homeowner from, say, building a small office
high-rise on their property in a residential neighborhood, even though that
homeowner owns the air rights to their property. Have a small home but want to
go up a few stories? Zoning restriction will likely restrict you from building out
too much, even though the air above is yours.
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