Recently I was watching the movie Burlesque starring Christina Aguilera and Cher and a legal issue was raised that piqued my curiosity. In the movie (spoiler alert!) Cher and Xtina are able to save the burlesque club from foreclosure by selling a nearby developer the "air rights" over the club so that the view for the developer's skyscraper will remain unimpeded. Is there such a thing as "air rights" for the space above a building and can one purchase them, or is this just an example of "movie magic"?
A: Believe it or not, “air rights” are for real, and the deal you describe is entirely plausible. The owner of land generally owns not just a particular bit of the surface of the Earth, but the ground beneath it and the air above it, too. Your neighbor can’t drill sideways into your yard for oil; likewise, he can’t build a deck that hangs over the yard.
Back in the olden days, a land owner owned everything on his plot of land, from the center of the Earth to the outer reaches of the universe. As the English common law classic Blackstone's Commentaries put it, “Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards.” This infinite ownership caused no real problems, since no one could actually get up all that that high, but that changed when airplanes were invented. Technically, airplanes were trespassing whenever they flew above land without permission, regardless of how high they flew.
In United States v. Causby 328 U.S. 256 (1946), the Supreme Court noted that “It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe… [b]ut that doctrine has no place in the modern world.” Instead, the Court ruled that land owners own only the airspace they can “reasonably use,” and that the airspace above that is a public highway.
So, airspace isn’t infinite, but it can be very valuable in the right circumstances. In some places (mostly dense cities), there is a thriving market for air rights. For instance, railroads frequently sell air rights above their tracks, so that people can build on platforms above them. Owners of buildings that use solar energy may purchase air rights from their neighbors to preserve their access to the sun. These are perfectly valid sales; if the railroad or neighbor ever sells its land, the new owners have no rights to the airspace.
I haven’t seen Burlesque, but it sounds like the club found a creative solution to raise money out of “thin air.” The low-rise burlesque club has no use for its air space, while the neighboring developer wants to prevent any future high-rise buildings on the club site. The neighbor now literally owns the air space above the club, guaranteeing that no one can ever build a building tall enough to block the view.
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