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.” (For more about ownership of the ground beneath your house, see “Do You Own the Land Under Your Home?”)
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.
Air rights can have more significance in places like …read more