Do You Own the Air Above Your Home?

Few people spend time thinking about air rights – unless they’re in the New York City real estate scene, where developers can pay up to $300 per square foot for space over a low-rise building.

Still, every homeowner should have a basic understanding of his or her rights to this space. Do you own the air above your home by default? And if so, what can you do with it?

What exactly are air rights?

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.”

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.

Going up?

Every town and/or neighborhood has zoning restrictions. Those restrictions generally prevent a homeowner from, say, putting up a 10-story condominium building 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 restrictions will likely prevent you from building anything but a one- or two-story single family home, even though the air above is yours. In fact, even if you own an entire acre, zoning likely prohibits you from building out on the entire parcel.

Big city, big value?

In dense urban areas such as New York City, where there is high demand but limited land on which to build, air rights can have potential value.

Not using the air above your building? A developer may acquire those rights to build out an adjacent property.

But even though some homeowners are able to cash in, that doesn’t mean the air above your property in NYC is valuable.

“The reality is that the value of air rights is based on what options the adding property owners have if they were to acquire the rights,” explains appraiser Jonathan Miller, president and CEO of Miller Samuel Inc. “In other words, if the subject property has plenty of air rights to sell but none of the adjacent property owners can use them, then the seller doesn’t have a purchaser. If the buyer needs to obtain a zoning variance first, then it would be risky to purchase the rights until the variance was secured.”

Who owns the view?

Air rights don’t have any direct relationship to the views from your property (except maybe your skylight).

In a hilly, view-laden city like San Francisco, nothing protects your views. You may have a great view through an adjacent vacant piece of land, but it could disappear if local zoning laws allow that owner to build a big house.

You may have some say in your neighbor’s construction project, however. In some cities and towns, nearby owners can voice their concerns at a public hearing before the municipality grants a building permit.

Ask before you buy

Are you uncertain about views or the air rights above or next to a home you want to purchase? Visit the local planning department. Give them the address and ask them what you might be able to build on the property you want, as well as the adjacent properties, and ask about height restrictions.

When it comes to air rights, it’s rare that there is any value to them. Just because you own them, doesn’t mean that anyone would want to purchase them. But being aware of what, if anything, you or a neighbor can do with these rights is valuable.

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Note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinion or position of Zillow.