Air Rights

Houses with air rights

The rights of landowners extend from the land itself to the use of adjacent water bodies. Importantly, he enjoys the right to use and sell the aerial spaces above the property. Landowners in major cities like New York, Chicago, and Tokyo stand to benefit more from air rights. This is more so where:

  • Your property is vacant or
  • the development on your property occupies less spaces than state and local laws permits, .

Air rights are not cheap. In New York City, you can sell or purchase air rights at a fee of $200 to $400 per square foot or more. It, however, depends on your location and the nature of the project involved. You can even decide to sell, lease, or transfer the air rights over the property separately while retaining your property. On the other hand, you can sell the right along with the property.

What are Air Rights?

Air right is the right of the owner of a real estate property to utilize and enjoy the vertical space that extends above their property, and enforce such rights, subject to the limits of the zoning district. It protects the space above a property up to the sky limit approved by the zoning district.

Property owners have rights to the land beneath their property and also the airspace above it. It is the right of a home owner to remove any structure that encroaches or hangs over his airspace. It does not matter whether the structure belongs to his neighbor or anyone else.

Floor Area Ratio (FAR):

Floor area ratio (FAR) is another name for the aerial rights above an existing building. To determine the ratio, you calculate the ratio of the building’s total square footage to the square footage of the property. You stand to gain a lucrative profit if you have a large amount of unused FAR on your premises. Landowners can sell the unused FAR to a developer or lease it for several commercial purposes.

Relevance of your Air Rights:

  • Right to add more stories to your building: Land is a limited asset. Most major cities are congested – and there is little or no land space available to raise more buildings. The population increases geometrically and the ground spaces shrinks. The only way to develop property is up, utilizing the aerial spaces.  Air right allows building developers the right to add more stories to both residential and commercial buildings for greater financial gains.

The rule is that the boundaries of any new development on the airspace cannot encroach upon an adjacent property unless you have purchased the aerial rights to the property.

  • Air rights are transferable developmental rights. Air rights, like any intangible property, can be leased, purchased, sold, and inherited. You can transfer air rights along with or separately from the title to the property. The potential value of the air rights over your property can inflate the sale price of your building. Besides, developers who intend to increase the value of a property can even buy the air space of surrounding buildings without buying the buildings on ground level.
  • Billboards and advertising signs are another way you can profit from your air rights. A property owner can earn huge profits by leasing the airspace above their land or building to advertising companies.
  • Railroads, highways, and other transportation hubs make money from selling their air rights to developers to raise buildings and towers. Classic examples include Grand Central Terminal in New York City, the Prudential Building above the Illinois Central Railroad, and the Tower Bridge in London. Development of air rights over the New York Central Terminal led to the construction of over 20 skyscrapers, both commercial and residential, over the railway tracks.

History of air rights:

Air rights were once considered to reach indefinitely skyward. That is the position of the English common law expressed by the Latin maxim: cujus est solum ejus est usque ad coelum et ad inferos — to whomever the soil belongs, he also owns to the sky and to the depths.

It was the case until air travel grew in popularity in the 1900s. There arose a global need to regulate air travels and specify the navigable airways. The Paris Convention of 1919 then took place.

The Convention was the first successful attempt to generally regulate international air navigation. The Convention consisted of 43 articles that dealt with all technical, operational and organizational aspects of civil aviation. The convention gave all states exclusive right over the airspace above their territory. It also allows aircrafts of another state to fly over the territory of a state on the condition of respecting the published restricted zones of the State. And now, the Federal Aviation Administration (FAA) holds a public easement for air transportation at high altitudes above all properties and estates in the U.S.

It is generally agreed that the specific altitude considered as navigable airspace above private property is at 500 feet above the tallest building in cities and suburbs and 360 feet above the tallest structure in rural areas.

Air Rights regulations:

About half of the states in the US have legislations regulating the use of airspace across the relevant state. New Jersey and Colorado specifically permit owners of air rights to convey them to individuals and corporations.

In New Jersey, the law provides that:

Estates, rights and interests in areas above the surface of the ground, whether or not contiguous thereto, may be validly created in persons or corporations other than the owner or owners of the land below such areas and shall be decreed to be estates, rights and interests in land.

Illinois permits municipalities to lease air space over streets and other public places for duration up to 99 years and permits railroads, which own the fee to real estate, to sell or lease the air rights for further development. The only limitation is that such development must not interfere with the operations of the railroad.

The Federal Aid Highway Act of 1961 made provision for the leasing of air rights over interstate highways. States like New York and Chicago have zoning regulations for development of airspace above railways and highways. Such development must be permitted by administrative decisions.

Conclusion:

Air right is as valuable as the fee title to your property. You will need to check the provisions of zoning laws in your State to determine the extent of use of your air rights. Also contact an expert in your area when you eventually wish to buy or sell such rights over a property.

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