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Who Owns the Sky? What Are Air Rights and How Tall Can You Build

If you are a property owner in Long Island, there is a good chance you own a piece of the sky. While most buyers are focused on property lines and condition of improvements on the land, when you purchase real property you actually own much more than that. Property owners have the exclusive right to build underground and up into the air within the property boundaries. Both of these rights can be valuable, but air rights have become of particular interest to real estate owners in New York.

What Does It Mean to Own Air Rights

By definition air rights are the legal ability to build in the empty airspace above a your piece of property. With this right come a number of advantages. First, no one else can block the natural light and visibility that exists directly above your land. This prohibition applies certainly applies to close neighbors who cannot build an architectural feature or obstruction that crosses the property line. Real estate owners may only build within their own property boundaries.

Second, as New York City, and surrounding areas such as Long Island and Brooklyn, became densely populated, air rights correspondingly became a valuable asset. Developers can buy the right to build in this airspace, and the real property owner can sell it. For example, if you own a two-story office building, but a developer wants to build four floors of apartments above or simply have the right to build four floors higher, it can pay you for that ability.

The market for air rights has become an increasingly important discussion among property owners; as mixed-use buildings and condominiums are more popular and there is less and less land available in Long Island.

This does not mean all air rights are valuable; only those that provide a realistic opportunity for upward expansion.

Restrictions on Air Rights in Long Island

At one time air rights meant you owed as far as the heavens and as deep as hell, or so the Latin maxim would go. Airlines changed this concept forever because if true, flyers of commercial planes would constantly be trespassing on private property.

Today, it is generally considered that property owners have exclusive rights to the space as high as they can reasonably build, but not high enough to interfere with commercial flights. This is a loose definition, and as technology allows property owners to build bigger and higher may change, but thus far this “rule” has allowed airlines to operate across the United States and around the world.

This constraint is not the only restriction on air rights in Long Island. Local governments also impact air rights and the ability to build through zoning laws and similar restrictions. In New York, most municipalities have zoning laws that restrict the height of a building in order to preserve quality of life and prevent an area from being overly congested.

A final restriction is the condition and form of the existing building. If it is impossible to add more floors due to structural concerns, current use, or architectural features, then the air rights become null.

Learning More

If you are interested in learning more about air rights or your rights as a real property owner in Long Island, contact The Law Office of Sami Perez. Our firm is located in Long Island and focused on commercial and residential real restate in the area, including changes to zoning laws and real estate trends that may affect your air rights or next real estate transaction. To schedule a confidential, initial consultation call (631)-594-3077.



The information in this blog post (“Post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this Post should be construed as legal advice from The Law Office of Samilde Perez or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter.