Individual (Private) Rights in Real Property

By: Jon Hardamon

Three of the most common private rights in real property are surface rights, air rights, and subsurface rights. Though these rights are rarely discussed in everyday conversations, they surround and dictate what we can and can’t due in relation to real property. What are surface, air, and subsurface rights? What are the differences between these rights? Is one more important than the others? Does the ability that these rights give us, affect us in other ways? The answers to these questions and how they pertain to us will be explained in depth, as well as their impact on specific types of individuals.

According to Diaz and Hansz’s “Real Estate Analysis: Environments and Activities”, surface rights are the ownership rights to occupy and use the surface

of real estate. In other words, this is an inalienable ability for individuals to obtain, use, and possess land at their discretion, as long as their activities on the land don’t impede on other individuals’ rights. This is not the same thing as having access to land for use in an economic way (i.e. farming). When a person only has access to land, this limits their financial stability, due to the fact that they face a constant situation of expulsion depending on the choices of the land owner. Globally, land rights have increasingly be

come more important, because they are so vital to various aspects of development.

According to Wickeri and Kalhan, land ownership can be a critical source of capital, financial security, food, water, shelter, and resources. The UN Global Land Tool organization has found that rural landlessness is a strong predictor of poverty and hunger. Surface rights are fundamental in attaining higher standards of living, but certain groups of individuals are consistently left out of land ownership provisions. The law may provide access to land, however, cultural barriers and poverty traps limit minority groups’ ability to own land. In order for these groups to achieve equality, they must obtain adequate land rights that are both legally and socially recognized.

Air rights, according to Diaz and Hansz’s “Real Estate Analysis: Environments and Activities”, is ownership and usage rights to the space above land. Generally speaking, ow

ning or renting a building or land gives a person the right to use and develop the air rights. At first, air rights were unlimited for people who owned real estate. It wasn’t something that was a concern among a lot of people before the 20th century. The first legal limits placed on air rights came about because of the airplane. Eventually, owners only had rights to airspace that they could reasonable use.

In the U.S., the Federal Aviation Administration (FAA) has the sole authority to control all airspace, exclusively determining the rules and requirements for its use. Property owners may waive or be required to waive any notion of air rights near an airport, for convenience in future real estate transactions, and to avoid lawsuits from future owners who might attempt to claim distress from over

flying aircraft. This is referred to as a navigation easement. In the case of United States v. Causby, the U.S. Supreme Court declared

the navigable airspace to be “a public highway” and within the public domain. At the same time, the Supreme Court, recognized that a landowner had property rights in the lower reaches of the airspace above their prop

erty. So there is, in effect, a balancing act between the public interest in using the airspace for air navigation against the landowner’s rights. Thereby establishing that a landowner owns only so much of the airspace above their property as they may reasonably use.

Railroads were the first companies to realize the potential of making money from their air rights. One of the best examples of this is Grand Central Terminal in New York City, where William J. Wilgus, chief engineer of the New York Central and Hudson River Railroad, devised a plan to earn profit from air rights. At first, the railroad simply constructed a platform above the rail yards to allow for the development of buildings overhead. But by 1954, the railroad realized it could sell more air rights and Grand Central Terminal was proposed to be replaced by a 50-story tower. This is how the MetLife Building came to be built next to the station.

Subsurface rights, according to Diaz and Hansz, are the ownership rights associated with the area underneath the earth’s surface. Ownership of subsurface or mineral rights is an

estate in real property. This gives the owner the right to exploit, mine, and/or produce any or all of the minerals lying below the surface of the property. The five elements of subsurface rights are:

1)the right to use as much of the surface as is reasonably necessary to access the minerals,

2)the right to execute any conveyances of subsurface rights,

3)the right to receive bonus consideration,

4)the right to receive delay rentals and

5)the right to receive royalties.

The status of the land is fixed by law and is distinguished as being either a freehold estate or a non-freehold estate. Freehold means ownership without limitations to duration.

Non-freehold means ownership for a specified period of time.

In conclusion, these various private rights in real property give restrictions and guidelines for the use and profit that can be gained from real property.

Works Cited

Adi, D. N. Critical Mass Representation in Uganda. 2009. 1-38. Print.

Hanstad, T. "Secure Land Rights." Rural Development Institute (2010). Web.

Hansz, J. Andrew. "Chapter 7." Real Estate Analysis Environments and Activities. By Julian Diaz. Kendall Hunt Pub, 2010. 176. Print.

"Housing and Property Restitution for Refugees and Displaced Persons." 3-5. Centre on Housing Rights and Evictions. Web.

Wickeri, E., and A. Kalhan. Lands Rights Issues in International Human Rights Laws. 2009. Institute of Human Rights and Business. Web.