Property owners rarely think about it, but they own the air space above their property as well as the surface below their property. When property owners hear this, their first thought is often, “If I own the air above my property, then why can’t I stop planes from flying over my house?” The simple answer is that Congress has created a public easement for all “navigable airspace” which is defined as any airspace above 500 or 1000 feet, depending on the area. As a result, planes are free to fly at these altitudes over your property without fear of complaint or interference from the property owners below. After all, there would not be much of an aviation business if every airline had to pay property owners for use of their airspace or create alternate routes around properties that refused to allow planes to fly over them.
Your air rights may also be affected by a number of other factors including local zoning laws or deed restrictions that limit the height of construction on the property or its uses. You can check your property’s title history for deed restrictions or look up the local zoning ordinances to see how your air rights may be curtailed. Many of Michigan’s Zoning ordinances can be found here.
However, this does not mean that your airspace is necessarily worthless. Your airspace can be bought or sold in the same way that you could buy or sell the mineral rights and sub-surface portion of your property. This actually happens more often than you think; especially in larger metropolitan areas. Trump Tower in Manhattan is built in such a way that he had to purchase the airspace from Tiffany & Co. next door.
Because your airspace is a valuable property right, you may be entitled to compensation in the event that it is taken. Indeed, there have even been cases where Michigan plaintiffs have been awarded money for a governmental taking of their air rights.
Right, but what about drones? Can I shoot those down if it comes on my property? While the answer isn’t entirely clear, it is likely no. The drone’s presence likely constitutes a trespass, but shooting it may result in other criminal charges being filed against you.
Michigan is already attempting to address this issue through HB 4868 which would make it a misdemeanor to fly drones over private property in a manner that constitutes a trespass. The law would make it clear that such an action is a crime, and property owners who have drones being flown over their properties may have a civil trespass case against the drone operator. Among the relief available, the property owner may be able to obtain an injunction to stop future trespasses.
In the meantime, we will have to wait for the state and federal laws to catch up to our rapidly changing reality. If you have questions about your airspace or drones, do not hesitate to contact an attorney.
Nine-Tenths 