Air Rights and Mineral Rights
Did you know about air rights? Air rights are the legal ability to use or control the space above a property. Air rights can be sold, rented, or leased to another party. It is the property interest in the “space” above the earth’s surface. Generally speaking, owning, or renting, land or a building includes the right to use and develop the space above the land without interference by others. It doesn’t mean you can build a skyscraper or fly a helicopter over your house, you still have to have the proper permits and licenses for things like that, but you do own the air above your house. There are still building restrictions. Building Restrictions are the requirements in building codes that affect the size and appearance of the building. You don’t want Code Enforcement out to your property, trust me. I just thought most people would find air rights interesting.
What has made it more interesting lately is technology. Drones and anything else regular citizens can operate may infringe upon your airspace. I researched the actual number and found that in 1946 the Supreme Court acknowledged that the air had become a “public highway,” but a landowner still had dominion over “at least as much of the space above the ground as he can occupy or use in connection with the land.” So you do own the air above your house, but it has to be reasonable for planes or anything else to be able to fly above. There is a case where a famer sued because an airplane was flying over his land and literally scaring his chickens to death. He won the lawsuit.
Not just the air over your home is yours, it is also likely that you own the property underneath and around your house. Most property ownership law is based on the old saying, “For whoever owns the soil, it is theirs up to heaven and down to hell.” We know that this isn’t true, but it is within reason. There can be exceptions to everything. On occasion, a buyer will uncover an easement for a driveway or walkway that goes through their property. This is why it’s important to carefully review contracts and disclosures. You may own the land below your home but not the actual minerals. The “mineral rights” grant has given others the freedom to drill, mine, or explore for precious minerals beneath the home of owners.
In real estate law, each state is different with regard to how things are disclosed. Many disclosure statements require the seller to tell the buyer whether or not someone else has laid claim to the property or if the buyer is limited to claims in the future. If the seller is unaware, or the home you’re purchasing is in a state that doesn’t require the seller to disclose, then you should carefully review the property’s title report before signing off. In any state, this important information is included in your preliminary title report. Real estate professionals read through these all the time and know what to look for. Which is a great reason to use an agent and not try to do without.