Airspace Rights and Property Owners

Brad Jones

Property owners are increasingly concerned about their rights with respect to aircraft overflying their property. The skies are becoming more and more crowded, particularly with the increased availability of unmanned aerial vehicles (e.g., “drones”). Land owners now wonder where their property rights begin and end, and what can they do about offending aircraft.

The rules governing the interplay between land owner rights and aircraft rights are complex and, in some cases, unsettled. Traditionally, it was thought a property was owned from the center of the Earth to the Heavens. With the advent of modern aviation, that view has changed dramatically. The modern land owner more realistically owns the portions of airspace above the property within reasonable control. There is no single set of rules for what that means since various state and local regulations shape what may be built on a parcel of land. The amount of control that can be exerted will be different for a property zoned for commercial use where a skyscraper is to be built, compared to a residential property owner who owns a two story home. It is almost certainly unreasonable for the residential property owner to claim ownership of the airspace 1000 feet above the home, whereas it may be completely reasonable for the commercial property owner who builds a skyscraper to make a similar claim.

When it comes to manned aircraft, FAA rules largely govern what is and is not allowed. Over populated areas, an airplane may be legally allowed to descend to as low as 1000 feet above the ground, while rural (sparsely populated) areas would allow even lower flight at 500 feet above the ground. In the Charlotte area, for example, it is not uncommon for home owners to complain about low flying airliners disturbing the peace. Some even bemoan decisions to “change the flight paths” so airplanes fly directly over their houses. While it’s true many airports have published arrival and departure procedures to help safely and efficiently route inbound and outbound airplanes, the procedures are generally not precise enough to single out particular homes or even neighborhoods as the target of regular noisy overflight. Unless the airplane has just taken off or is about to land, you can bet it is well above the 1000 foot minimum altitude. Nevertheless, a prospective homebuyer should carefully consider a property’s proximity to an airport and its position relative to runways. A property near the approach end of a runway will frequently have air traffic overhead. Also remember that factors such as weather conditions, winds, and congestion can influence flight locations from day to day.

Drone flight management is the modern day “wild west” when it comes to regulation. The FAA, as well as state and local lawmakers, have scrambled to enact rules to govern drones and their operations. The rules continue to evolve, but they present a challenge with the dynamics between federal, state, and local law. Subject to exceptions, the FAA prohibits drone flight more than 400 feet above the ground, over people, and out of line of sight, but private land owner rights and local laws may impose further restrictions on flight. Whether a drone can legally fly over your property will be a question of circumstances, location, and use of the drone. No matter the answer, land owners wondering if they may shoot down an intruding drone are best advised to not do so, and instead contact local law enforcement and the FAA if they suspect a drone is being operated illegally.

Property owner rights and aircraft rights are a complex and ever-changing weave of federal and local rules. If you have a question about your rights as they relate to these issues, call an attorney at Black, Slaughter & Black, P.A., in Charlotte or Greensboro.