From a property law standpoint, airspace refers to the air above a landowner’s property. Think about the space over the top of your house or from the ground up in your yard. Since this is technically considered a separate piece of property, there is such a thing as having air rights.

Generally, if a person owns land then they have the right to occupy and use the airspace. This is why homeowners can legally do things like adding a fence around the perimeter of their house, building a shed in the backyard, and putting a large sign in their front yard. Another example of utilizing airspace rights is when a building owner adds an addition to the top of their building.

Simply put, owning land gives you the right to occupy the airspace above or below the property without interference from another person. A common inquiry is if there is a limit to the extension of airspace you can use. The answer to this question is that it depends. Most states will say that the landowner has rights to as much space above or below the property they can occupy or use.

However, this limitation may vary between the states so it is important to check relevant state laws when you want to utilize airspace on your property, especially if it involves erecting a very tall structure or digging far underground.

What Air Rights do Tenants Enjoy?

Tenants will also generally enjoy the same air rights as a landowner while they are renting a house or building. However, there will obviously be some limitations to this since there is a landlord involved and the tenant does not own the property. For example, the lease could place some restrictions on how a tenant could use the airspace. If the lease prohibits tenants from building new permanent structures on the land, then they cannot utilize the airspace for these purposes.

Additionally, if a tenant uses airspace for illegal purposes then this would be a problem as well. For example, say a tenant is renting a house in an area where burning fires outside is prohibited because there is a high risk for uncontrollable wildfires to start. If the tenant has a bonfire, this would not be a proper and legal use of their airspace and their rights would be limited.

Tenants also need to remember that upon completion of their lease, all airspace rights will terminate. If the lease automatically renews until one party expresses the intent to end the lease, then the airspace rights enjoyed will continue until the lease legally terminates.

Can Airspace Rights Get Legally Transferred?

One important thing to know when you own property is that you can legally transfer airspace rights in certain situations. Some common ways air right transfers can occur include the following:

  • Leasing the actual airspace or property – as discussed above, tenants will enjoy temporary use of air rights while leasing a piece of property;
  • Formal sale of the airspace, which could include full or partial transfer of air rights;
  • Selling the land to another person, whether a complete or partial sale – for example, when you sell your house the new owners will have air rights on the property and your interest will be terminated once the sale is completed;
  • Granting an interest to the airspace to someone else, like allowing your friend to build an outdoor office space in your backyard;
  • Giving someone an easement to use part of the airspace, like a utility company that needs to put up new posts or wires in or above your yard; and
  • Gifting your land to someone else while still retaining an easement to use the land for specified purposes, which would create a shared right to the airspace depending on the terms agreed upon between the parties.

Are There Laws or Other Things That Can Affect My Airspace Rights?

There are certain laws and circumstances that can affect your airspace rights, even when you own or rent the property. One limitation was already discussed above where a landlord places airspace restrictions in a lease for a tenant to follow.

Another thing that can affect a person’s airspace rights are local zoning ordinances and municipal airspace ordinances. These laws can place limitations about how a property owner can utilize their airspace. For example, say you buy a new house but there is no fence around the perimeter of the house. You check your local laws and find that there is an ordinance placing a height requirement of 8 feet for fence structures you add to your land. This means that if you build a 9 foot fence, you would violate the local ordinance and face a fine or other legal consequences.

Another thing that could affect your airspace rights are easements. When you buy a house or piece of land, the sales contract should notify you of any easement or other property interest so you can make an informed decision to proceed with the sale and not run into any unexpected surprises down the road. Typically, this consists of utility easements or may discuss shared space with adjacent landowners. All of this can limit a person’s air rights. For example, you cannot interfere with a utility pole present in the airspace of your yard when adding on an addition.

Can I Sue If Someone Violated My Airspace Rights?

If another person encroaches on your airspace rights, you may be able to take legal action and get an injunction or compensation. Since this is considered a real property right just as with the actual structure you own on the land, other people cannot legally interfere with your rights if they do not have an easement, independent contractual right, or shared interest in the airspace.

For example, say your neighbor built a treehouse in their backyard. However, part of the treehouse hangs over the fence into your yard. This was not agreed upon before they built the structure and blatantly interferes with the airspace rights in your yard. You can sue your neighbor and ask for the court to issue an injunction requiring them to remove the portion of the treehouse hanging in your yard. You could also seek monetary damages for any losses suffered as a result of the airspace right violation.

On the other hand, remember you cannot sue if someone has a legal right to part of your airspace. For example, say the electric company servicing your area needed to make some changes to where the lines went in the neighborhood. This required them to place some new electrical wires hanging in the air over your yard. Because they would have an easement that you agreed to when purchasing the home, you cannot sue the electric company for placing the wires in your airspace and your air rights would not be considered to be legally violated.

Do I Need a Lawyer for Disputes Over Airspace Rights?

Airspace rights can be complicated and confusing, especially if you are not fully aware of applicable laws, easements, or other interests. A local real estate attorney can help you determine what your airspace rights are and handle any disputes in court, if needed. A lawyer can also help you determine if utilizing airspace to do something like build a new structure on your land would present any challenges due to easements or other legal obstacles.