Consult local underwriting counsel as the laws governing use of airspace varies from jurisdiction to jurisdiction.
The basic requirements to insure airspace rights are:
1. A determination must be made as to the record owner of the underlying land at the time of severance of the air parcel from the underlying land. This severance creates a new “chain” of title for the air parcel ownership. Look for a “covenants, conditions, and restrictions” document in the chain of title which may define ownership rights and obligations as to both the air parcel(s) and the underlying land. In the alternative, a ground lease may be required to provide supporting space for the separate air space ownership.
2. The parcel of airspace must be located or defined by engineering and survey data (a legal description) sufficient to adequately define the insured parcel. At the very least, this must be a three-dimensional description which defines a floor elevation plane or datum and a ceiling elevation plane or datum with respect to the perimeter description of a horizontal surface. This three-dimensional description must be aligned with a surveyed tract of surface land. A surveyor or engineer should be able to identify the perimeters of the insured airspace with certainty in reference to a known surveyed tract of land which can be identified in the land records of the county in which the airspace (and surface land) is located.
3. The airspace must have the benefit of a written and recorded easement or other appurtenant right in the referenced land surface to support any structure erected or to be erected within the airspace. This right may be set forth in a ground lease or “covenants, conditions and restrictions” document which may also include provisions for ingress and egress as stated below.
4. The airspace must have a written easement for ingress and egress (if ingress and egress is required). This easement must also be recorded in the office of the recorder of deeds for the county in which the airspace and the referenced surface land is located. Please note that the “right of access to the insured land” is one of the insuring provisions of the policy. The easement for ingress and egress to airspace will probably be across private land (and may include other airspace). Consequently, an exception in Schedule B must be raised to modify the insuring provisions of the policy relating to access and to disclose the terms of the access easement.
5. The covenants, conditions and restrictions for the use of the airspace must be identified in a recorded document referenced to the underlying land and must be raised by exception in Schedule B of the policy.
6. Review that the airspace parcel created does not violate any “plat act” requirements according to local laws.
7. If easements are to be insured, they will have to be added as an additional insured parcel.
8. Contact your local underwriter counsel for requirements for waiver of the general exceptions to the policy related to survey pursuant to any request for “extended coverage”. A survey may be required.