What are ‘Air Rights’?

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Donald Trump famously bought the ‘air rights’  around the Tiffany’s flagship store in New York to prevent other developers from building up above it and obscuring the views from Trump Tower.

But recently there have been some notable ‘air rights’ transactions in Australia too – and you might be wondering, what is the air above my property actually worth?

How much air space can you own?

The legal maxim is sometimes expressed as ” cujus est solum ejus est usque ad coelum et ad inferos” – that is, he who owns the land owns to the heavens above and hell below.

While that sounds interesting, it is not really correct. In fact, at common law your rights to the air space above your property extend only to ‘such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it’.

Historically the limits as to how much airspace you need in order to exercise ‘your ordinary use and enjoyment’ is not something that has really needed to be tested.

But with the advent of drones and the way that they do seem to be able to to interfere with people’s privacy, it may be that a more finite measure of how much the airspace one own’s may come into existence.

What are ‘Air Rights’?

Air rights are not really proprietary in nature; rather (the way that have been bought and sold in Australia thus far) they refer to right to develop or veto the development of particular volumes of space.

And there have been similar transactions in Australia to the Trump one. In 2016, the developer of 18 Yarra Street in South Yarra Victoria wanted to protect the views of the his building. In order to do this, he bought a number of apartments in the adjoining low-rise building at 19 Yarra Street. In this way, he purchased the right to veto any attempt to sell or redevelop 19 Yarra Street in a way which would threaten the views of 18 Yarra Street.

Councils have also been using novel schemes based around air rights in order to control and manage development in high density areas. ‘

For example, the City of Sydney Council recently announced a $20 million sale of “air rights” above the 200-year-old heritage-listed Hyde Park to a consortium of developers.

The purchasers apparently paid up to $1,500 per square metre for around than 12,000 square metres of the  air space above the heritage building.

There’s no suggestion that the developers will build above the heritage building (they can’t anyway). However, the scheme offered by Council, the developers can essentially bank the space reserved for the heritage sites, where development is forbidden, to expand properties elsewhere.

Air rights are thus being used almost as tradable units for planning permission purposes.

Conclusion

With a rapidly expanding urban population and finite land on which to house it, ‘air rights’ is certain to be something we see more of in Australia’s high-density regions.

If you have any questions about this article, please contact the office on 1800 870 407 and one of our solicitors/conveyancers will be able to assist.

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