The issue of rights related to real estate has been the subject of intrigue and controversy for years. Most people in the real estate industry are familiar with the rights granted by mineral/subsurface and surface rights, but with the rapid population growth and changes in technology, a third type of right is garnering the real estate industry’s attention – air rights.
Air rights are commonly understood, though without much clarity, to mean that the surface estate owner owns enough of the air space above for the current use of their property or their intended use of the property. Unfortunately, to date there has been little to no discussion over how such use is determined or if the use changes over time (or even multiple times).
The use of that air space, and all air space, is governed by the Federal Aviation Administration. Though with the rise of drone use and efforts by some counties and municipalities to maintain dark skies near observatories and military bases, there are increases in rules and regulations effecting air rights. The rights to the air space above the surface may also be severed similar to the subsurface/mineral estate for things such as an aviation easement.
The common issues related to air rights involve both temporary and permanent obstructions. The temporary obstructions are normally construction cranes and drones.
With tall construction cranes, the mere entry into someone’s air space is generally not considered a trespass, but some other effect caused by the instruction may give the owner a basis for a claim. For example, with the increased development of high rises in major Texas cities a large crane casting a shadow, that may remain for years, over a neighboring development’s pool could potentially cause the basis for a claim. Additionally, the potential for physical damages to adjoining property is a real consideration.
The increase in the use of drones is causing concern for holders of air rights. For every surveyor and realtor using a drone to more effective market or inspect surface areas, there are those few who use drones for more nefarious reasons. Now, with delivery companies testing the use of drones for delivery, it remains to be seen what claims could potentially be filed should an errant drone cause damage.
Finally, issues related to permanent obstructions are already causing claims. As high rises continue to be built closer together, agreements between developers over the issue of air rights may be brought to the forefront in lawsuits. In one case, Class A Investors Post Oak, LP v. Cosmopolitan Condominium Owners Association, owners in the condominium association took the position that the new high rise would adversely impact their property through allegations of inadequate fire safety access and untenable traffic congestion. Class A argued the previously recorded easement for construction and aerial rights with the prior landowners should be enforced. In this case, the recorded easement was enforced. It remains to be seen what claims may potentially be made in the future in regards to air rights, but the possibility of owners wanting to file claims against developers threatening to block their air, light, or view is most certainly around the corner.
