AIR RIGHTS

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Air rights generally refer to the empty space above a property. The owner of land or property also owns the airspace above that property. These owners have a right to develop this space despite the impact on the light and air quality of the neighboring properties.

  • Thus, a landowner who builds upon his land and cuts off a neighbor’s window overlooking that land faces no liability.
  • An occupant of land has no natural or inherent right to light and air and may not complain that either has been shut off by the erection of buildings on adjoining land.
  • Exceptions to this rule are sometimes found in laws like the Real Property Actions and Proceedings Law (RPAPL) and the New York City Zoning Resolution, which, in limited circumstances, create a right to an unobstructed view.
  • For instance, RPAPL § 843 creates a private nuisance action where a landowner erects a fence 10 feet or more in height, which has the effect of excluding an occupant of adjoining land from enjoying light or air.

 

In addition, property owners can create legal contracts with neighbors to give the right to air, light, or an unobstructed view, through an express easement or covenant. This must be in writing and contain unequivocal language granting such an easement or restriction. McKinley Onua can help create legally binding easements with neighbors that guarantee views, unpolluted air quality and other rights among adjoining landowners. Our firm also facilitates the purchase and sale of air development rights.

 

 AIR DEVELOPMENT RIGHTS

Air rights are often used interchangeably with air development rights or Transferable Development Rights (TDRs). Air development rights refer to unused development rights above an existing building. The New York City Zoning Resolution (“the Resolution”) grants property owners the right to build up to a certain floor area on each zoning lot. Floor area is the total gross area of all floors of a building, excluding mechanical space, stairwells, elevators and cellars. If a building does not use all the development rights allocated to that zoning lot, the excess air rights may be sold for development on neighboring properties.

There are three common ways to transfer air rights.

  • Zoning Lot Mergers– The most common way to transfer development rights is by zoning lot merger. Lot owners can merge without any government approval. The lots must have at least 10 feet of common boundary. After the merger, a property owner or developer can build a taller building than would otherwise be allowed by zoning laws.
  • Special Purpose District Transfers– These types of transfers occur when the city deems an area a ‘special purpose districts,’ which then allows air rights to be exchanged between noncontiguous landowners. The city allows for these sorts of transfers in special cases, such as when there are specific zoning goals in an area.
  • Landmark Transfers– Involve transferring air rights for properties and sites that have been deemed historically or culturally significant by the Landmarks Preservation Commission. New York City zoning laws allow the exchange of air rights between a designated landmark and other properties wishing to develop land. The properties do not have to be contiguous.