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.

Real Estate Options to Purchase

What is an Option? “An option is a contract by which the owner of property invests another with the exclusive right to purchase said property at a stipulated sum within a limited or reasonable time in the future.” Nattress & Associates v. Cidco (1986) 184 Cal.App.3d 55, 66. Donald Trump used an option to purchase the Hotel Commodore at Grand Central Terminal, his ground breaking first deal at 27 years old. More commonly, options are used in leases in which the landlord gives the tenant an option to buy the property. For example, the AIR Option to Purchase form provides that the lessee must provide written notice within a certain time period (i.e., April 1, 2004 to April 30, 2006), with the option expiring at the end of the option period. The form also sets forth the price, the escrow agent, a time period in which to close the sale and other instructions. After exercising an option, the parties should then enter into a Purchase & Sale Agreement, which addresses in more detail all of the minutiae of the sale transaction.

An Option is Irrevocable. An option supported by consideration (even $1) is an irrevocable offer, open for a prescribed period. The acceptance must be in accordance with the terms of the option agreement and must be free of conditions which the optionor is not bound to perform. Riverside Fence Co. v. Novak (1969) 273 Cal.App.2d 656, 660. The exercise of an option is merely the communicated election of the optionee to accept the option. Id. at 661. It is important to recognize that, in terms of the formation of a contract, an option is a contract. Therefore, the “offer” (option) is truly irrevocable and merely awaits acceptance.

A Qualified or Conditional Acceptance. What is the effect of an acceptance which adds additional terms or is made conditional? “Any tender of performance is ineffective if it imposes conditions upon its acceptance which the offeror is not entitled to demand.” Riverside Fence Co., supra., at 662. However, the fact that a purported acceptance adds a qualification to the agreed-upon option does not in and of itself terminate the option. As long as the option period has not yet expired, a party may still exercise the option without qualification or condition (even though a prior [ineffective] acceptance may have added such qualifications). Again, the option is truly irrevocable.

The courts have explained that “if the person offering to perform is acting in good faith, and makes the mistake of demanding something to which he is not entitled, he ought to be given the same opportunity to recede from such demand that he is allowed for tendering the correct amount where he has tendered too little, or the right thing where he has tendered the wrong thing…” Nattress & Associates, supra., at 67.

Waiver of Conditions. In the event that a party imposes additional conditions on the exercise of an option, the offeree must specifically point out the alleged defects in the tender or he waives the right to object to the conditions. Civil Code §1501; Code Civ. Proc. §2076. The rationale of this requirement is that the offeror should be allowed to remedy any defects in his tender. Therefore, the offeree should not be allowed to remain quiet at the time of the tender and later surprise the offeror with hidden objections. Riverside Fence Co., supra., at 662.

In addition, an optionor may not do any act or omit to perform any duty calculated to cause the optionee to delay exercising the option within the specified period. A court will look at the good faith of the optionor. If he attempts to prevent the exercise of the option, his behavior may excuse a failure to perform and other conditions precedent to acceptance by the optionee. For example, in the Riverside Fence case, the optionor failed to sign the escrow instructions but would not explain why. The optionee offered to make corrections but the optionor refused to identify any defects in the exercise of the option. The court found that, although plaintiff had not performed, she had attempted in good faith to tender performance and that defendant’s evasive conduct was calculated to prevent timely performance. The court therefore precluded the optionor from asserting that there had not been a timely or proper exercise of the option.

Laine T. Wagenseller is the founder of Wagenseller Law Firm, a full service real estate litigation firm in downtown Los Angeles. The firm represents real estate developers, owners, and investors. For more information visit http://www.wagensellerlaw.com or contact Mr. Wagenseller at (213) 996-8338.