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Extent of Ownership and Real Property: Air, Surface & Subsurface

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  • 0:08 Ownership of Real Property
  • 1:45 Surface Rights
  • 2:46 Air Rights
  • 4:40 Subsurface Rights
  • 6:54 Lesson Summary
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Lesson Transcript
Instructor: Ashley Dugger

Ashley has a JD degree and is an attorney. She has taught and written various law courses.

When you buy real property, you gain several different kinds of rights. You'll likely own a bundle of rights that includes more than just the surface area of the land. This lesson explains air, surface, and subsurface rights.

Ownership of Real Property

Ownership of real property is unique, in that an owner will acquire many different types of rights associated with the land. These extended land rights are often referred to as a bundle of rights. The bundle consists of a variety of privileges, including rights to the surface of your land and to the spaces above and below the surface of your land.

It might be helpful to envision a slice of the earth like a slice of pie. The surface of the earth runs through the middle of the slice, but you also own the portions of the slice that are directly above and directly below that surface. The top layers of the pie represent the sky and air space above your land. The bottom layers and the crust of the pie represent the ground beneath your land.

For example, let's say that I buy a large parcel of land in a rural area. My land has hills, a stream and some woods. I'm not sure what I want to do with my land yet. I may build a log cabin and make it into a weekend retreat, or I may leave it empty and keep horses or cattle on it. I need to know exactly what kind of rights I have to this land before I decide how I'll exercise those rights.

Surface Rights

Let's start with the area that I can easily see. I know that I have surface rights to my land. Surface rights are rights to use, improve and sell the surface of the land. This means that I have the right to occupy, build on and otherwise use the surface area of my land. Surface rights are the rights we commonly think about when we think about land ownership rights.

Because I own the surface rights, I can build a cabin on my land, I can build a barn or a shed on my land, I can build myself a private road or a driveway, I can plant crops or trees on my land and many other types of activities. I'm limited only by my local zoning codes. Note that surface rights can be bought, leased or sold alone. While land usually comes with a bundle of rights that includes surface rights, those rights can also be separate from the bundle.

Air Rights

Now let's take a look up. When I bought my land, I acquired air rights. Air rights are the right to control, occupy or use the vertical space above my land. Air rights are usually more limited than surface rights. These rights aren't usually absolute. This means that others can also use the space above my land, if it's reasonable and necessary for others to do so.

For example, I can't limit the space above my land to an aircraft. If I'm in an airport's flight pattern, I can't direct that the aircraft fly around, rather than over, my land. I also can't prohibit a utility from extending wires or poles across my land when it's necessary to reach my neighbors.

Like surface rights, air rights can be bought, leased or sold alone. Remember that land usually comes with a bundle of rights that includes air rights, but those rights can also be separate from the bundle. The sale of only a property's air rights is somewhat unusual, but it's becoming more commonplace in densely populated areas.

For example, let's say that you own a 12-story apartment building in downtown Chicago. Let's also say that Chicago has a zoning ordinance, whereby no building may exceed 50 stories. Vickie is a real estate developer and wants to build a loft-style apartment building in your area, but there aren't any empty lots for her to build on. You sell Vickie the air rights above your existing building, since you effectively have 38 unused stories ready to be developed. Vickie can now build above your building by adding her own stories on top of yours.

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