Recently there has been some notable ‘ Air Rights ‘ transactions in Australia. Here’s a brief introduction explaining how they work.
The legal maxim is sometimes expressed as” cujus est solum ejus est usque ad coelum et ad inferos ” – that is, he who owns the land owns to the heavens above and hell below.
While that sounds interesting, it is not correct. In fact, at common law, your rights to the air space above your property extend only to ‘such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it’.
Historically, the limits of how much airspace you need to exercise ‘your ordinary use and enjoyment’ are yet to be tested.
But with the advent of drones and how they can interfere with people’s privacy, it may be that a finite measure of how much airspace one owns under the current legislation will be revised in the future.
In property law, the concept of air rights dates back to a 13th-century legal maxim, which held “whoever owns the soil, it is theirs up to the heavens and down to hell”.
While poetic, this definition is not true these days, thanks to air travel.
What does this mean?
Typically, when you buy land or property, you get the air rights included in the deal (though a notable exception is a plan of subdivision that provides for limitations on the upper or lower boundaries of a property). Owning air rights means you can develop or veto (on-sell) the development of the air above your land within reason. As such, air rights are sometimes known as transferable development rights. Therefore, air rights are a consideration when purchasing and looking into developing or selling the right on. The Australian Government is currently putting pressure on local Councils to free up more space to increase housing supply so air rights will become part of our future.