Airspace Over Your Property – How Much Of It Do You Own?

CYA Disclaimer: The following is intended for reference purposes only and not as legal advice. The short answer is, “as much of it as you can use”. No, you cannot float a “No Trespassing” blimp and shoot down passing airliners for trespassing. But believe it or not, you can build a tall building on your property and the airlines can’t make you take it down even if it interferes with air traffic – unless you can find a law (such as building codes) that expressly prohibits you from doing so. By federal law, upper airspace is considered “navigable”, meaning the public has the right to use it. But what exactly is “upper airspace”? In the foregoing example, if you built a tall building on your land and the airline were overflying your property at altitudes lower than the height of your building (and in the same vicinity), it would be possible for you to sue them for trespassing.

It would also be possible for you to sue for nuisance even if the planes didn’t even overfly your airspace, if the planes were making enough noise to interfere with your “quiet enjoyment” of your property. Keep in mind, though, that if you live near an airport, the airport has probably already purchased the right to make as much noise as they want. If you don’t know about any such purchase, it’s probably because these rights were purchased from a previous owner of your property.

I’ve got some good news, though, if a new airport is being built near property you own – you might be able to make them pay for the right to pollute your airspace with noise, regardless of whether their planes will be overflying your property or not. If the airport is government-owned, you could claim that the noise constituted a “taking” of your property and although you couldn’t stop them from doing it, you could demand “just compensation” (note that the legalese is in quotation marks). If the airport is privately owned, you could file a claim under nuisance law and force them to choose between either continuous liability under nuisance law or settling with you in lump sum for the reduction in the value of your property.

Real Estate Law in Plain English explains real estate law without the legalese.

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4 Responses

  1. I like the blimp idea. Hmmmm I wonder if Goodyear would mind if I borrowed one;D

  2. Hmm. If my hobby is letting helium balloons go and ‘popping’ them with a laser (can’t discharge a firearm in the subdivision), then I have the right to destroy a low-flying (under 500 feet) drone that interferes, right?

    Actually, it’s time for states to pass laws giving homeowners the absolute right to destroy an airborne device flying lower than 500 feet over his property.

  3. I don’t understand the widespread irrational and belligerent attitude towards remote-controlled aircraft. I (responsibly) fly remote-controlled aircraft over my own land, over my friends land, or from public parks or flying-fields. Sometimes I fly with cameras- not for surveillance, but because the view from above is so spectacular and amazing.

    RC aircraft, UAVs and the overly mis-applied term ‘drones’ are completely harmless unless some clown shoots one down, and it crashes into somebodies house, car, or person. I worry a lot more about the irresponsibly fired bullets striking innocent neighbors downrange…

    These flying machines aren’t going to sneak up on you. The helicopter types make a LOT of noise, so it won’t be hovering outside your bedroom window without you, your neighbors, and all the nearby dogs noticing it.

    Nobody has the legal right to shoot down any flying vehicle. (So how do you know for sure that its actually “un-manned”? ) It just might be flown by the neighbor kid next door. Does it make you feel like a big macho he-man to blast a kids toy out of the sky? Really!! Grow up. At most, you may file a “nuisance” claim in court. Thats about it Rambo…

    I worry a whole lot more about all the kids walking down the sidewalk with iphones, cameras etc. Its a whole lot easier to just walk up to the side of a house to be a peeping-tom than it is to precisely fly a remote-controlled aircraft from a distance. …just think about it with your own brain for awhile- if you can remember how…

  4. Ron From Tn,

    You raise some interesting points. I would think that if you continue to fly your “drones”, as most people call them now, over your own land or land where you have an implied right – then your little UAV will be in no danger of being shot down by me. If it comes over my land though rest assured I will have a crack at it with my bow.

    You note that you can’t understand why the widespread attitude to these little suckers over private land is negative – and that these widely held views are irrational and belligerent. I would put it to you Ron that it is the people holding the controls of the UAV’s that are belligerent because as you point out they are not welcome by most people so by flying them over someones land without permission is by definition ‘belligerent’.

    With respect to what right anybody has to knock one of these things out of the sky – I am keen to test the law on it. I am taking the position that if someone wants to press the point for me damaging something (that would most likely be mine as it would be on my land in my possession), then they can go down whatever path they like. If you find a package on your doorstep – do you assume it is yours? The idea that I can remove your right at common law to enter my property – but you can fly a vehicle in – is absurd.

    Also thanks for the heads up on the attitude of the UAV community – now I don’t care if it does belong to a kid or not.

    I actually agree with Jtom in that there should be a restriction on their use – unless a landowner wants to waive that right to let them fly over.

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