Air rights
An owner's legal claim to the usable space above the surface of their land. In practice this claim is limited by government control of navigable airspace for aircraft.
Key Takeaways
- Air rights are one of the appurtenances that pass with land at sale, alongside water rights, mineral rights, and surface rights.
- Ownership of the space above a parcel reaches only as high as the owner can reasonably occupy or use, because the federal government holds exclusive sovereignty over United States airspace.
- Air rights are an interest in real estate, so a sale of the space above a building is made by deed under RCW 64.04.010.
- A city, county, or port district may buy or condemn air rights near an airport for approach protection under RCW 14.12.220.
What It Means
Air rights are the owner's claim to the usable space above the surface of a parcel of land. Washington pre-license material teaches them next to water rights, mineral rights, and surface rights as one of the appurtenances, meaning the rights that travel with the land and pass to the buyer when the property sells. In theory the owner of the dirt owns the whole column of air above it. In practice that column reaches only as high as the owner can reasonably occupy or use, because aircraft have to cross the sky above private land.
The working point for a licensee is that air rights are an interest in Real Property, so they can be separated from the ground and dealt with on their own. The space above a low building can be sold to a developer who wants to build higher. The space above a road or a rail line can be leased for a plaza or a parking deck. The space near an airport can be bought or condemned by a public body so nothing tall goes up in the flight path. Each of those deals moves one stick out of the owner's Bundle Of Rights and leaves the rest of the sticks in place.
How It Works in Washington
Washington treats the space above land as property that can change hands on its own. RCW 64.04.010 says every conveyance of real estate, or any interest therein, shall be by deed. Air space is an interest in real estate, so selling the air above a lot uses the same instrument as selling the lot: a deed that describes exactly which volume of space is being transferred.
Two Washington statutes show air space being handled as a separate asset. RCW 47.12.120 lets the Department of Transportation rent or lease lands, improvements, or air space above or below any lands held for highway purposes that are not presently needed, which is how buildings and parking structures end up sitting over state right of way. RCW 14.12.220, headed Acquisition of air rights, lets the political subdivision where the property sits, or the one that owns or is served by the airport, acquire an air right or an avigation easement by purchase, grant, or condemnation when approach protection cannot be handled by airport zoning alone. That is Eminent Domain aimed at the sky rather than the ground. Above all of it sits federal law: 49 U.S.C. 40103 gives the United States exclusive sovereignty of the nation's airspace and gives citizens a public right of transit through navigable airspace, which is the ceiling on what any private owner can claim.
Example
Priya owns a two-story brick building on a 6,000 square foot lot in Tacoma. Zoning allows 90 feet of height, but her building uses only 28 feet. A developer, Northline Partners, wants apartments over the roof. Priya keeps the lot and the two floors she has, and sells the air rights from 30 feet up to the 90 foot limit for $410,000. The deed describes the transferred space by elevation, using surveyed heights above a fixed benchmark, and Northline records it with the Pierce County auditor. Priya's title still shows her building and her lot. Northline's title now shows a defined volume of space above it, plus a recorded easement for the columns and elevator shaft that pass through Priya's structure. Two years later Priya lists the building at $2.1 million, and her listing broker discloses that everything above 30 feet was sold and is no longer part of the property.
Common Mistakes and Exam Traps
- Air rights are an appurtenance and pass with the land unless a document says otherwise, so an answer that calls them personal property is wrong.
- Owning the space above a lot does not let a landowner block aircraft, because the federal government holds exclusive sovereignty over navigable airspace.
- Air rights and surface rights are separate sticks in the bundle of rights, and conveying one does not automatically convey the other.
- A lease of air space transfers use, not ownership, so the original owner still holds title when the lease term ends.
Where you'll learn this
Frequently Asked Questions
Can air rights be sold separately from the land underneath?
Yes. Air rights are an interest in real estate, so an owner can convey the space above a building while keeping the ground and the structure below. In Washington that conveyance is made by deed under RCW 64.04.010, and it is recorded like any other deed.
What is the difference between air rights and an avigation easement?
Air rights are ownership of the usable space above a parcel. An avigation easement is a limited right for aircraft to pass through that space and for height near an airport to be restricted. With an easement the landowner keeps title and gives up a specific use.
Do air rights come up in an ordinary house sale?
Usually not, because they pass with the land and nobody has carved them out. They matter when a prior owner sold or leased the space above the property, or when an airport or a highway agency holds a recorded interest in it. The title report is where that shows up.