Posted: February 1st, 2023
A landowner owns as much of the air above the surface as he or she can reasonably use for surface uses. Without some of the airspaces above it, the land would be useless; nearly every use of the land necessitates the use of some airspace above the surface.
Building any type of construction on the surface takes up space in the atmosphere without a doubt. Because landowners have the right to use their land in a reasonable manner as long as it does not interfere with the rights of others to do the same, they also have the right to use the surface and air above it in a reasonable manner unless it interferes with someone else’s use of the property. Because of the common law principle, even if landowners only occupy 20 feet of air for a long period, they can subsequently elect to create a 200-foot building if it is not a nuisance. Although there is no apparent upper limit to an owner’s airspace, it does not extend into navigable airspace. The general public has access to the upper airspace that is open to air travel.
Air Rights
Simply put, air rights are a property interest in the space above the surface of the earth. When somebody buys land, they usually get a package of rights that includes surface, mineral, water, and air rights. Each of these rights can often be purchased, leased, or sold separately.
Ownership does not extend indefinitely into space. Air rights now include any airspace above the ground that could be utilized in connection with the land. Airplanes flying on the public highway are not trespassing because they are soaring above their property. Flight over private property must not obstruct the enjoyment and use of that property.
Previously, the bulk of drones were used for surveillance by the government. The debate over air rights may heat up as some argue that landowners should decide whether a drone can fly over their property, while others argue that the choice should be taken collectively. There have been multiple examples of drones being shot down by people who claim to be terrorists.
Air rights are also influenced by zoning restrictions. People cannot erect a high-rise apartment complex or add three floors to their existing home only on the basis of the ownership. Zoning laws may prohibit this. It is critical to know what people possess as property owners and be aware of the rules governing it.
It is also likely that a drone flight over or around anyone’s residence will be considered trespassing. Unlike other sorts of civil disputes or torts, the property owner can sue for trespass without having to show that they experienced any loss or damage as a result of the drone’s or its operator’s actions.
When anyone violates the right to private enjoyment of the owner of the property, which includes their home and the land surrounding it, it is said to be trespass. To establish a trespass, they must be able to show the following:
Exclusive possession: This usually indicates that people are living or residing on the property and have the legal authority to prevent others from entering. In most cases, owners, tenants, and boarders have exclusive possession. People may not have exclusive control of the land if it is a public space, such as a park close to their home.
Land: This encompasses both the physical ground and the area above and below it. Therefore, unless it flies so high that it is imperceptible, a drone flying over the property can be considered trespassing.
Intentional or negligent: The interference must be intentional or thoughtless to be considered a trespass. This is determined by the drone operator’s activities as well as what the landowner see the drone doing.
Interference: Landowners must also show that the interference was unjustified or that it is still interfering with their enjoyment. Drones that fly over their house, linger around their windows, or intrude on their privacy are likely to be deemed unreasonable.
Drones can be used for commercial or recreational purposes. Commercial drones are subject to more regulations and must be certified. Anyone can purchase a hobby drone. Each organization has its own set of rules to follow. The maximum height permitted to fly for hobby drones is less than 400 ft. Commercial drones can go beyond that with a federal waiver or fly around specific structures where other drones cannot. If a drone weighs more than 0.55 pounds, it must be registered. A new rule proposed by FAA for drone registration and the capacity to remotely identify them could take years to execute.
According to an area attorney, enforcing these registration laws is extremely challenging. It’s worth noting that a drone flying more than 50 meters over your private property is unlikely to be subject to this legislation. The drone operator may be held accountable for trespass if a drone is flown without the permission of the owner over their premises. The owner of the property should also notify the drone operator if they have been told to stop filming over their private property but continue to do so. If landowners feel an organization has recorded, gathered, or stored their personal data without their consent, the first step is to contact the organization and consult its pu
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