Does Your Building Project Need a Real Estate Easement for Construction?

Atlanta, like every other major city in the United States, has undergone a building boom in recent years.  Throughout urban areas, excavation upon construction sites often extends multiple stories below the ground surface.  Land surrounding these excavations is typically supported by vertical pilings, with horizontal tiebacks extending beneath adjacent streets and properties. Tower cranes spring from these excavations, rising hundreds of feet above the ground surface. Crane jibs or arms swing out, over and across streets and adjacent properties, hoisting and moving construction materials about the construction site.  Drones fly, hover, and whiz , above, around, and over adjacent streets and properties, snapping construction progress photos from multiple angles. In cities like Atlanta, such scenes are repeated everywhere.  As a construction attorney, I often wonder if the owners and contractors for these projects know they may be committing a trespass?  I also wonder if the public and private owners of these adjacent properties know a trespass might be committed against their “air rights” and “subsurface rights”?

Most folks do not understand the boundaries of their property extend up into the skies above as well as down into the earth below.  Put another way, you own the “air rights” above your property as well as “subsurface rights” below.  As far back as medieval Roman law, it was ruled “whoever owns the soil, it is theirs up to Heaven and down to Hell.”  Obviously medieval laws had to change with the advent of air travel (1915) crossing through air rights and the use of tunnel boring machines (1890’s) boring through subsurface rights.  In the United States, the Federal Aviation Administration or FAA has sole jurisdiction to regulate navigable “airspace” or “air rights” above both public and private property.  In urban areas, this generally means property owners control the “air rights” up to a height of 1,000’ above the ground surface, over which planes, helicopters, and drones can freely operate subject only to FAA regulations.

Unlike “air rights” there is no federal or local agency within the United States charged with the control of “subsurface rights.”  Just as “air rights” are critical to aviation and navigable “air space”, “subsurface rights” are critical to the development of underground tunnels for infrastructure in urban areas.  All major cities in the United States, now use large bore tunnels (up to 50’ or more) in which to construct public transit, store sewage awaiting treatment, or transfer drinking water from its source. Most tunnels are bored within the hard rock strata that lay 100’ or more below the ground surface.  The “subsurface rights” for tunnel projects are typically taken by the government through condemnation proceedings with little or no compensation paid.  In urban areas, this generally means property owners control the “subsurface rights” beneath their property to indeterminate depths, unless and until given a notice of condemnation for public use.

Understanding “air rights” and “subsurface rights” should be a concern to every owner and contractor working in crowded urban areas. With respect to “air rights,” a major national developer is currently constructing a multi-story apartment building upon a long, narrow site near downtown Atlanta using a single tower crane.  The main jib, or boom, of the tower crane, operates on a daily basis, and routinely extends over and across public and private properties surrounding the site. These properties include, commercial businesses operating on both sides of the site, a city of Atlanta sidewalk and busy Federal/State highway in front of the site, and a commercial business operating on the opposite side of the Federal/State highway.  A drone often appears to hover above and cross these same properties, but on a far less frequent basis.  Unless the developer and/or contractor have obtained temporary easements, licenses, or other forms of agreement with these 3 private owners, as well as the 3 government entities (City, State, and Federal), they are committing multiple trespasses of public and private “air rights” every day the crane or drone operate.

With respect to “subsurface rights”, another national developer is constructing a multi-story, multi-use building near downtown Atlanta that required a deep excavation.  The site is square and surrounded on 2 sides by commercial property, and pubic roads on the other 2 sides.  The property surrounding all four sides of the excavation is supported by vertical pilings, with horizontal tiebacks extending beneath the adjacent streets and properties.  While these tiebacks typically serve no purpose after construction is completed, they are generally left in place due to cost and inaccessibility.  Unlike cranes and drones that disappear once construction is completed, the developer and/or contractor are likely committing a continuing trespass against these 2 private owners and 2 public owners unless they have obtained permanent easements, licenses, or other forms of agreement to leave these tiebacks in place,

The fallout from the failure to obtain the requisite easements or licenses relative to “air rights” and “subsurface rights” can be highly disruptive to both the cost and schedule upon your construction project.  Adjacent public and private owners can seek restraining orders prohibiting cranes or drones from entering the air space and violating their “air rights”.  Orders like this often restrict further trespasses, requiring the introduction of additional cranes to access areas of the site otherwise inaccessible without violating neighboring "air rights".  Alternatively, adjacent property owners may seek injunctions requiring the removal of tiebacks that encroach upon their “subsurface rights”. Depending upon the stage of construction, such removal can be extremely costly, even when possible, or require a complete redesign of the piling system providing lateral earth support.  Either of these situations would cause major impacts to both the costs and schedule of construction. 

The only saving grace is that the violation of “air rights” and “subsurface rights” seldom gives rise to damages unless the property value is “substantially impaired”.  However, nothing prevents adjoining property owners from demanding a “kings ransom”  for easements or licenses after construction has begun. Generally, the costs of requesting forgiveness and withdrawal of a protective order or injunction, are far greater than seeking permission in the first instance.  The takeaway is to avoid trespassing upon the air rights and subsurface rights of adjoining landowners if possible.  But if impossible at least beware of the risks of doing so,.