Keith Mack
The question of who owns the airspace above a property has gained prominence with the increasing use of drones and other unmanned aircraft. Traditional property laws held that ownership of land included ownership of the space above and below it, but the advent of aviation has complicated this notion. While the Federal Aviation Administration in the US has defined navigable airspace as the space at or above the minimum altitude for flights, as well as the space required for takeoff and landing, there is still a lack of clarity regarding the exact boundaries of this airspace and private property rights. This has led to ongoing debates about the extent of a landowner's rights, with cases such as the United States v. Causby in 1946 setting a precedent for landowner compensation when aircraft intrusions substantially impair the use of their property.
| Characteristics | Values |
|---|---|
| Airspace ownership | Vested in the owners of the lands below |
| Air rights | The legal ability to build in the empty airspace above a piece of property |
| Air rights transfer | Air rights can be bought, leased, or sold |
| Airspace development | Property owners have the exclusive right to develop the vertical space above their property |
| Airspace interference | Interference by others into the lower stratum is usually deemed an act of trespass |
| Airspace and property use | Property owners are entitled to compensation when the government or a trespasser substantially impairs the use of their property |
| Airspace and drones | Drone owners can fly over private property, subject to FAA rules, without getting permission from the property owner |
| Airspace and aircraft | The landowner's property interest in the land extends to the airspace directly over the property, to the extent that the airspace can be used to benefit the underlying land |
| Airspace and flight altitudes | The Federal Aviation Administration sets the rules for navigable airspace, which includes space at or above the minimum altitude for flights |
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What You'll Learn
The historical view: 'whoever owned the soil owned... anything above it'
The ad coelum doctrine, or the "heavens to hell" principle, is a common-law view that asserts the landowner's rights to the air and ground above and below their property. This doctrine, expressed in Latin as "cuius est solum, eius est usque ad coelum et ad inferos", translates to "whoever owns the soil, it is theirs all the way to Heaven and to Hell". This principle, dating back to the 13th century, grants landowners an infinite vertical column of space defined by the horizontal boundaries of their land.
This notion of property ownership was solidified in English common law in the case of Bury v. Pope in 1587, where a property owner was upheld to have the right to build up against their neighbour's window. The ad coelum doctrine allowed landowners to prosecute trespass against people who violated their airspace, even if they never physically touched the soil. This meant that landowners could prevent overhanging parts of neighbouring buildings and had the right to the space immediately above their property.
However, with the advent of air travel in the 20th century, this principle of infinite aerial ownership began to be challenged. Legislators established a public easement for transit at high altitudes, regardless of real estate ownership, to promote air transport. In 1946, the United States v. Causby case further eroded the ad coelum doctrine when the Supreme Court ruled in favour of a farmer whose chickens were startled by low-flying military aircraft. The Court concluded that the government could not own all airspace down to the ground and that the ad coelum doctrine had no place in the modern world.
Today, the ad coelum doctrine is only accepted in a limited form, with property holders' rights divided into air rights above and subsurface rights below. While landowners generally have a right to the space immediately above and below the ground, they do not have the right to control flights far above their property or subway construction below. The exact altitudes at which airspace over private land can be considered "substantial impairment" vary, but case law has used 500 ft (150 m) in urban or suburban areas and 360 ft (110 m) in rural areas as demarcations.
Despite these limitations, the ad coelum doctrine still holds relevance in modern law, particularly in the context of air rights and zoning laws. Landowners can sell or transfer their air rights, and in dense urban areas, these rights can be valuable for constructing new buildings.
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The modern view: public easement for flights at altitude
The notion that property rights extend indefinitely upward remained unchallenged before air travel became popular in the early 20th century. However, the development of aviation led to a shift in this concept, as legislators established a public easement for flights at high altitudes, regardless of real estate ownership. This modern view recognises that the advent of aviation requires a re-evaluation of traditional property laws, which held that whoever owned the soil owned anything above it.
The Federal Aviation Administration (FAA) in the United States now has the sole authority to regulate all "navigable airspace", determining the rules and requirements for its use. "Navigable airspace" 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." This definition encompasses the space required for aircraft to safely operate, including during crucial phases of flight such as takeoff and landing.
The exact altitude at which airspace over private land can be considered substantially impaired is often debated. Past case law has used the height of 500 feet (150 meters) in urban or suburban areas and 360 feet (110 meters) in rural areas as a demarcation. However, recent decisions hold that impairment of property rights can occur regardless of whether the flight occurred within navigable airspace. This is particularly relevant with the emergence of new aircraft technologies that have no minimum flight altitudes, making virtually all airspace navigable.
Despite the establishment of public easements for flights, property owners retain exclusive development rights to the vertical space above their land. This means that they can choose to build upwards or sell their development rights, which can result in significant profits, especially in urban areas. However, zoning laws may limit these rights by setting maximum height restrictions for structures in certain areas.
The modern view on public easements for flights at altitude balances the need for aviation transit with the property rights of landowners. While the FAA regulates navigable airspace, landowners can still seek financial compensation if their use of property is substantially impaired by the federal or state government, or by aerial trespassers. This compensation is based on the occupancy of the property and the interference with its enjoyment and use.
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The law: no clear definition
The law regarding the ownership of airspace above a property is complex and varies across different jurisdictions. While it is generally accepted that landowners have some rights to the airspace above their property, the extent and nature of these rights are often unclear and subject to interpretation.
In the United States, the Federal Aviation Administration (FAA) has the sole authority to regulate all "navigable airspace", determining the rules and requirements for its use. However, this does not necessarily equate to ownership. Case law and legal precedents have established that property owners have the right to develop and sell the vertical space above their properties, known as air rights. These rights can be valuable, especially in densely populated areas, as they can be sold or transferred to developers interested in building taller structures.
The exact altitude at which airspace becomes subject to ""substantial impairment"" is often debated and varies between urban and rural areas. While past decisions have used 500 feet (150 meters) in urban or suburban areas and 360 feet (110 meters) in rural areas as demarcation points, more recent rulings have held that impairment can occur regardless of whether the flight occurred within navigable airspace. This ambiguity has been further complicated by the increasing use of drones, which can fly at low altitudes and potentially infringe on private property rights.
The concept of "navigable airspace" adds another layer of complexity to the discussion. While the FAA regulates this space, the question of who owns it remains unresolved. The courts have grappled with this issue for decades, and the advent of new technologies has only increased the pressure to establish clear boundaries and definitions.
In the United Kingdom, airspace around a property is typically divided into the "lower stratum" and "upper stratum". The lower stratum refers to the area around and above a property that the owner can reasonably expect to enjoy without interference from others. The upper stratum, on the other hand, is loosely defined as starting between 500 and 1,000 feet (150 and 300 meters) above the roof level of the property. While property owners in England, Wales, and Northern Ireland have no rights to the upper stratum, Scottish law extends these rights further.
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Case law: United States v. Causby
In the case of United States v. Causby, the United States Supreme Court ruled on the ownership of airspace above private property. The case involved Thomas Lee Causby, a landowner whose farm was located near an airport in Greensboro, North Carolina. During World War II, the United States military conducted flights as low as 83 feet (25 m) above Causby's farm, causing significant interference with its use as a chicken farm and resulting in the death of chickens.
The Court of Claims initially ruled in favour of Causby, determining that a landowner's domain includes the airspace above it. The court held that Causby was entitled to just compensation under the Takings Clause of the Fifth Amendment, as the low-altitude flights constituted a "taking" of his property. The United States appealed this decision, arguing that the flights occurred within the navigable airspace placed within the public domain by Congress.
The Supreme Court agreed to review the case, considering the contradiction between common law, which stated that ownership of property extended indefinitely upward, and the federal claim that flights were made within the navigable airspace. The Court ultimately ruled in favour of Causby, finding that a taking had occurred because the flights were outside of the navigable airspace. The Court affirmed that navigable airspace was within the public domain but clarified that flights that are so low and frequent as to interfere with the enjoyment and use of real property constitute a taking.
The Court's decision in United States v. Causby established important precedents regarding airspace ownership and the rights of landowners. However, it is important to note that much of the holding has been superseded by more recent cases and changes in regulations. Additionally, the case did not provide a clear answer regarding the exact altitude at which private land can be considered substantially impaired, leaving this question open for further debate and interpretation in subsequent cases.
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Air rights: the ability to build in the airspace
Air rights refer to the legal ability to build in the airspace above a property. In many cases, when you buy land, it comes with a bundle of rights, including air rights. These rights can be bought, leased, or sold.
The exact altitude at which airspace over private land can become subject to "substantial impairment" is often debated. Case law in the past has used the height of 500 ft (150 m) in urban or suburban areas, and 360 ft (110 m) in rural areas, as the demarcation of where impairment of property rights can occur. However, more recent decisions hold that impairment can occur regardless of whether the flight occurred within navigable airspace or not.
In the United States, the Federal Aviation Administration (FAA) has the sole authority to regulate all "navigable airspace", determining the rules and requirements for its use. The FAA considers the public highway to start around 500 feet in uncongested areas and 1000 feet in congested areas. The right to enjoy the airspace above one's property is not an automatic right to build into that space without planning permission.
In dense downtown areas, each building owner may have the right to a certain number of stories of airspace above their property. They can choose to sell their development rights, which can result in substantial profits, especially in urban areas. For example, in 2005, Christ Church in New York sold its vertical development rights for $430 per square foot, making over $30 million.
Local governments can also impact air rights and the ability to build through zoning laws and similar restrictions.
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Frequently asked questions
The answer to this question is complex and depends on several factors. Traditionally, it was believed that the owner of the land had rights to the space above it, with the 13th-century Latin maxim "cuius est solum, eius est usque ad coelum et ad inferos" translating to "whoever's is the soil, it is theirs all the way to heaven and all the way to hell". However, with the emergence of aviation, this concept had to be reevaluated. While there is no clear definition of how much airspace a landowner owns, it is generally accepted that they have rights to the immediate vertical space above their property that could reasonably be used in connection with the land.
In the United States v. Causby case in 1946, a military aircraft flew 83 feet above a farmer's land, causing his chickens to kill themselves by flying into walls. The Supreme Court ruled in favor of the farmer, setting a precedent that flights over private land can be considered a trespass if they interfere substantially with the owner's use and enjoyment of their land.
Yes, property owners generally have the exclusive right to build upwards within their property boundaries. However, zoning laws and other restrictions may limit the height to which you can build to preserve the quality of life in the area and for structural safety.
The airspace above your property is a grey area with no clear definition of ownership. While it is generally legal for drones and aircraft to fly above your property, they must do so at a height that does not interfere unreasonably with your use and enjoyment of your land.
