The Air Rights Concept in New York

Air rights

Air rights can be defined as ownership of space above one’s property which allows the owner to control, occupy and use the vertical space extending from their property all the way up. The law, however, requires that the owner implements reasonable use that abides by statutory laws and does not infringe the rights of others. The degree to which a property owner claims their air space is determined by laws in that country and the Zoning District. Air rights are beneficial for developers and real estate owners since they dictate the aerial space that is available for further development. Air rights have made aerial space have monetary value, and they can now be bought, leased, and sold¹. Most real estate agents use aerial space as a price booster in the evaluation of their properties. The Transferable Development Rights are utilized in the sales of undeveloped property to potential buyers. New developments in the air rights law have resulted in the identification of navigable airspaces which are not under the control of the owners. The Federal Aviation Authority is responsible for the regulation of navigable space. The navigable space in most countries often includes a minimum of 1000 feet above the highest object in areas that are crowded with structures².

Fundamentals of Air Rights in NY

Air rights in New York allow owners to make significant developments, and if they are unable to utilize the space, they can sell the rights to potential buyers in adjacent buildings. Zoning Lot Development Agreements must be signed by the two owners, and this is used in the dictation of terms of transfer. These agreements are often comprehensive and are used to dictate terms that are referred to in cases of disputes. The city’s registrar’s office contains a legal document referred to as a zoning exhibit. This document contains a lot of information regarding a property, e.g., the owner of the property, its dimensions, as well as adjacent properties³. It is always necessary to have this recorded of the property to help in conflict resolution and allow for tracing of the property, allowing the easy transfer.

In New York, air rights are not unlimited since building codes exist that restrict the nature and extent of developments done on a particular aerial space. Without these regulations, there is the risk of the buildings collapsing, exposing people to accidents fires, among other evitable disasters⁴. Air rights transfer is never only done for the financial gain of the perpetrators. In some scenarios, the transfer can include public benefit, especially when public structures, e.g., theatres, are built on bought aerial space.

The Development of Air rights

Air rights were first developed and implemented in the early 13th century⁴. In its development, a phrase that states that anyone who owns the soil owns the space and extends to heaven, and the space extends down to hell was coined and used to emphasize the law². This law gained extreme popularity, leading to its adoption among English-speaking regions in the mid-18th century. This concept gained significant ground in the US after a court decision made in the late 18th century about barrels of herring that had been stolen and buried 15 feet beneath the accused property. In the 1900s, the US legislature amended the law-making air right to only include space within the range of actual occupation, i.e., the extent to which humans can do their socio-economic activities⁵. This modification was done to increase the use of air travel in the country. Air rights regulation for air flight use is majorly restricted in regions that are close to airports.

Other than the aerial space for flight navigation, zoning laws have been developed in different states to serve other purposes. This includes the limitation of heights of buildings based on the location, as well as the reduction of the number of occupiable floors in a building. Zoning laws intend to serve safety reasons or aesthetic reasons, among other reasons stated in zoning laws. In New York, air rights were first developed in approximately 55 years with the intention of achieving extensive urban planning goals and objectives. However, the city rehauled its zoning regulations in the year 1961 and added several restrictions to developers to reduce the saturation of the city and other impacts of the transfer of air rights⁶. The restrictions served the purpose of ensuring that the quality of life of residents is not negatively impacted while still allowing for development activities.

Sales of Air Rights by Property Owner

The units that are used in expressing air rights include the Floor Area Ratio (FAR). The majority of the property is allowed to sell to adjacent properties that share a minimum of 10 feet, with the property granting the air right ownership. However, this law does not apply to some properties like churches, historic buildings, and Broadway theatres. New York air rights dictate three primary ways of transferring air rights. The first method is through Zoning Lot Merger, which requires contiguousness of tax lots. This method allows neighborhoods to acquire more developed buildings, thus reducing the degree of development of a region. The second method is by Landmark Transfer, and this method does not require the property to be contiguous. The last method is through a system referred to as Special Purpose District Transfer. This method involves the exchange of rights between the granting and buying sites that are not contiguous ⁶. New York City allows this type of transfer when there is a particular special goal that is intended in a particular locality.

Air rights in New York are quite costly, with a square foot going for between 200 and 400 US dollars⁵. However, this price varies from one location to another, and it is also negotiable. Purchase and Sales Agreements are utilized in each air-right sales transaction. Other documents involved in the sales process include a title company certificate, Zoning Lot and Development Agreement, Zoning Lot description and ownership statement by the developer, as well as the Declaration of Zoning Lot restrictions ⁶.

Regulatory Authorities of the Air Right in New York

New York City contains the city’s register offices that are responsible for collecting, recording, and documenting all air rights property. The offices make the data available through the online database called Automated City Register Information. The data is stored in the form of zoning lots of declaration that allows users to search by blocks and lots. Additionally, the register offices store zoning exhibits obtained after any air right transfer ⁷. The City Council and City Planning Commission is responsible for the implementation of the Zoning Resolution and amendments of New York City.

Reference List

Abuhoff, L.E. (1988) ‘The city of New York and the transfer of development rights’.Penn Libraries

Bevans, N.R. (2008) Real Estate and Property Law for Paralegals. Wolters Kluwer.

Boffard, B.K. (2014). ‘Transferable development rights in New York City’.

Kennedy, T. (1982) ‘New York City Zoning Resolution section 12-10: A third phase in the evolution of airspace law’. Fordham Urb. LJ 11, 1039.

Marcus, N. (1983) Air rights in New York City: TDR, zoning lot merger and the well-considered plan. Brook. L. Rev. 50, 867.

Pomeroy, C.J. (2015) ‘All your rights are belong to us’. Nw. J. Tech. & Intell. Prop. 13, i.

White, N., Willensky, E., Leadon, F., 2010. AIA guide to New York City. Oxford University Press.

Footnotes

1. Bevans, N.R, 2008. Real Estate and Property Law for Paralegals. Wolfer Khwer
2. Pomeroy, C.J., 2015. All Your Right Are Belong to Us. Nw. J. Tech. & Intell. Prop. 13, i.
3. Marcus, N., 1983. Air rights in New York City: TDR, zoning lot merger and the well-considered plan. Brook. L. Rev. 50, 867.
4. Boffard, B.K., 2014. Transferable Development Rights in New York City.
5. White, N., Willensky, E., Leadon, F., 2010. AIA Guide to New York City. Oxford University Press.
6. Abuhoff, L.E., 1988. The City of New York and the Transfer of Development Rights.
7. Kennedy, T., 1982. New York City Zoning Resolution Section 12-10: A Third Phase in the Evolution of Airspace Law. Fordham Urb. LJ 11, 1039.