Do I Have Any Rights to the Air Above My Property or the Surface Below?


Okay, so you’ve finally done it. You’ve purchased your first home, or perhaps a parcel of land on which you plan to build a home. But what exactly do you own, and what rights do you have with regard to its use? Do you have any legal rights to the surface that lies above or below your property?

Landowners have the right to use and possess the surface, subsurface (soil), and airspace of their property. So what exactly does this mean? And, are there any restrictions on how you may use the property that you own? We’ll examine these questions one at a time, in order to give you a solid understanding of what it really means to be a landowner.

Next, let’s discuss whether or not you have any rights to the air above your property.

The Air up There

Many landowners may not be aware of the fact that they have a right to use and possess the airspace the "floats" above the actual property they own. This right is not exclusive, and as such, airspace may be utilized by others for different purposes than a landowner would. Such a concept is easy to understand when you think of it in relation to aircrafts. For example, if you build a standard two-story house on your property, you have the right to not have that structure be subject to any physical interference from aircrafts.

On the flipside, aircrafts do have the right to use airspace for flights, as long as they don’t interfere with the rights of the landowners.

The law is clear that an owner is entitled to freedom from excessive noise and passage by airborne carriers. If an aircraft is in flight so low that it is unreasonably disturbing to the landowner, the aircraft could be held liable for trespassing on your property. Additionally, if the aircraft or airport is government-owned, such flights would constitute a "taking" of your property.

Next, we’ll discuss a landowner’s right to use and possess the surface and subsurface of his or her property.

Side by Side

Equally as important as the landowner’s right to subjacent support is the landowner’s right to lateral support of land in its natural state. Land in its natural state is land without any structures on it or changes to its natural existence. Lateral support means support from adjacent land, or land that is "next to" your property. Again, let’s use some examples to illustrate this concept more clearly.

Scenario #1

First, let’s pretend that you have a neighbor who begins digging a deep hole on his property to install an in-ground pool. This is an excavation. If your neighbor digs a very deep hole, or if he or she digs a hole too close to your property line, your land could be more vulnerable to subsiding. In other words, your land could lack the adjacent (i.e. side) support needed to remain in its natural state. If your neighbor’s excavation does cause your land to cave in (like a landslide), then your neighbor will be liable to you for damages, regardless of how careful he or she was trying to be.

Scenario #2

Now, using the same set of facts in Scenario #1, let’s say that in addition to your land caving in, the garage that you had built upon your land also caved in, destroying it completely. In this situation, your neighbor would still be liable for causing your land to subside, but he or she would only be liable for your garage if you can prove that the land would have collapsed even without the garage built on it. In other words, it would have collapsed in its "natural state."

Scenario #3

For this scenario, let’s combine the first two scenarios, only this time, your land caved in because your neighbor was negligent in the excavation. For example, let’s say that your local building codes dictate that one may only dig a hole on his or her property that is no more than eleven (11) feet deep (remember, this is purely hypothetical). In our scenario, if your neighbor dug a hole that was deeper than 11 feet, then he or she would be liable for both the damage to your land AND the damage caused to the garage you had built on your property, EVEN IF your land would not have subsided without the garage built on it.

Next, we’ll discuss the remedies that you have as a landowner.

How to Make It All Better

So you own a piece of property, and perhaps built a home on it. What happens now that your rights to use your property (as illustrated in the previous sections) have been interfered with by someone else? Here, we’ll examine the different remedies that you have as a landowner.

Invasion of Tangible Property on Your Land

First, if a tangible physical object invades your land (e.g. your neighbor’s son hits a baseball onto the surface of your property), this interferes with your right to exclusively possess your land. In such a situation, you could sue your neighbor for trespass to property, although it is highly unlikely that you would want to sue your neighbors for playing a game of baseball, absent any actual damage to your property.

Invasion of Intangible Property on Your Land

Next, if your land was invaded by something intangible, such as excessive noise from an aircraft, and this noise is so significant that it unreasonably interferes with your right as a landowner to use or enjoy your property, you could bring an action against the wrongdoer called a private nuisance.

Damages You’re Entitled To

So what exactly will you get as the landowner for bringing either one of these lawsuits? Well, here it depends on what relief you request. If you ask for and receive damages, then the court is likely going to award you money equal to the fair market value of that part of your property that was damaged, at the time the damage was caused (e.g. the cost of your broken window that resulted from your neighbor’s son hitting a baseball into your yard). On the other hand, with regard to an action for nuisance, the court would likely award an injunction, which is just a fancy way of saying that they will make the wrongdoer stop whatever it is that is preventing you from peacefully using and enjoying your property (e.g. the court will order the airplane to stop flying so low over your property in order to reduce the level of noise).

Next, we’ll wrap up the article with a few main points to keep in mind.


In conclusion, it is important that you know what your rights are as a landowner, and what your options are when another interferes with those rights. The rights to use, possess, and enjoy your land is a fundamental concept of property law. Often, when life gets difficult, and problems arise either at work or in your community, your home acts as the "safe haven" to which you can retreat from some of the world’s unpleasantness. This is difficult to do when others are interfering with your right to enjoy what is yours. So, as a landowner, it is your responsibility to understand what your rights are and to preserve them so that there really is "no place like home."

© 2009-2010 ThinkingLegal, LLC. All rights reserved.