Airspace: Overview

Title to estates or interests in land created above ground may themselves be the separate subjects of title insurance, provided that an accurate description with respect to horizontal and vertical planes are established such that the “cube of air” can be defined and located. This concept may be employed to separate a building from the land upon which it rests as a financing technique or a tax saving device. It is also used in large urban centers where it is necessary to divide and utilize available airspace in addition to the limited prime surface land to create multiple floored living arrangements without the use of condominium laws. It may also be used to define an area that may be restricted from construction which would obstruct the view or sunlight for an adjacent parcel of land. The airspace concept should not be confused with the separation of the ownership of land and buildings by agreement under the terms of certain sale-leaseback transactions. In those transactions, the building may not exist as a separate parcel of real estate unless it is separately defined and attached to other ownership interests in the land. Most forms of condominium ownership involve rights in airspace defined in the declaration of condominium and the condominium statutes of the relevant state. The concept of airspace addressed in this section applies to airspace rights other than those derived through a declaration of condominium.