Who Owns the Air Above Your Home?

Posted by Mike & Michelle Grizzell on Sunday, January 8th, 2017 at 8:38am.

AirYou own your home, your front yard, and your backyard. You enjoy making the home your own, planting what you’d like in your yard, and adding things like swimming pools and new fences. Have you ever considered the other part surrounding your home and who owns it?

We’re talking about the air above your home. Who owns this part of your home, you, the neighborhood, the government, or someone else? Why would this matter anyways? If you live in an area like New York City, this is a big concern for residents.

You can actually purchase the square footage over a low-rise building in New York and many developers are taking advantage of this opportunity despite the $300 per square foot price tag. This may make others around the country start to wonder about the air above their home and what it could be used for. Take a closer look at air rights, who owns it, and how it affects you.

Understanding air rights

The first things you should understand is that the air above your home falls into the debate of air rights, which in real estate refers to the empty space above a property. You may have never thought about this or heard about this before, and that might be because before the 20th century, it was already understood that a property owner would also receive unlimited air rights above a property they bought. This also meant a property owner had the rights to the ground beneath their property as well.

What changed?

While the saying used to be “For whoever owns the soil, it is theirs up to heaven and down to hell” like the Latin doctrine that determined the law, the 20ths century brought airplanes and changed the rules of air rights. It changed things for homeowners that would now only have the rights the airspace above their home that could be reasonably used. If the law hadn’t changed, airplanes would never be able to fly because they would constantly be trespassing on homeowner’s air space.

What does this mean for you?

Tampa ViewsNow that the law has changed with the arrival of the airplane, homeowners have to follow strict rules on what can go above their property. For example, a homeowner couldn’t place a high-rise building on their property, such as a condo building, even though the homeowner has the air rights to their property. You can always try to increase your home by more stories, but zoning restrictions will likely prevent you from increasing your height by more than a story or two.

In a city like NYC, this restriction means a lot. There is a huge demand to build and live here, but not much land to work with. That means that air rights hold a way larger value than an undesirable city. If you weren’t using your air rights, a developer nearby may try to use that space for their own build out.

This often affects a homeowner’s view of the skyline. For residents of a city like San Francisco, there is nothing that protects your views of that adjacent piece of land, because it could easily get purchased and get renovated into a larger home. The good news is that if your neighbor is trying to have a construction project done on their home, nearby owners would have a say at a public hearing before a building permit is granted by the municipality.

If air rights are really important to a property you are considering purchasing, be sure to find out if they hold any value and what restrictions you may face trying to build up a property. If you weren’t going to use it, your neighbor might try to.

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