Who Owns the Airspace Above My Property? Air Rights Explained

Key Takeaways:

• Air rights allow the use (and trading) of space above a property.
• Typically owned by the freeholder or collectively by leaseholders.
• Legal aspects include rights to light, access rights, and restrictive covenants.
• Expert advice is essential for navigating ownership and legal complexities.

Who Owns the Airspace Above My Property?

Airspace development is rapidly becoming one of the most beneficial ways to increase the amount of residential living space within London. But with that comes the question for many leaseholders and tenants surrounding the point of ownership for the space above rooftops. 

Extending a building upwards brings numerous benefits for the local community via the protection of green spaces and allows those who own the airspace to maximise the value they get. That’s why this month, we’re taking a closer look at who might own the airspace above your property – sometimes referred to as air rights – to help establish whether it is suitable for development.

Understanding Air Rights

Air rights refer to the legal rights to use and control the space above a particular building or piece of land. In simple terms, it is the right to use the airspace above a property for various purposes, such as extending the property upwards or restricting the use of airspace by others. Air rights are a valuable commodity and can be bought, sold, or leased independently of the land below. This has given rise to air rights transfers, where property owners can monetise the unused airspace above their land by selling it to developers, like London Penthouse, looking to develop the airspace into residential penthouses. 

Who owns the airspace?

The ownership of the airspace of a property can vary from building to building. Most commonly, ownership and rights to the airspace are held within the freehold interest of the property. 

The freehold ownership is usually structured in one of two ways. 

Firstly, the freehold can be owned collectively by the leaseholders of a building. This is what is referred to as a ‘share of freehold’ structure, where each leaseholder owns a portion of the leasehold. This is usually apportioned as one share per flat but can be reflective of the size of each property. In this scenario, the leaseholders will generally have the right to vote on what is done with the airspace. 

The second structure that is common here in the UK is a standalone freeholder. This is where a single person or company, separate from the leaseholders of the building, owns the entirety of the freehold. Generally, in this structure, the freeholder will be able to determine the use of the airspace on their own without the input of the leaseholders. 

Whilst these are the most common situations for the ownership of the airspace, titles can often be complex, with many parties having varying rights to the airspace, so it is essential to take professional advice prior to commencing with an airspace development.

Other legal factors to be aware of

Aside from the points outlined above concerning ownership and rights when it comes to airspace development, there are a few other things to consider:

• Rights to light – There may be rights attached to an owner or occupier, meaning they should be able to receive direct sunlight into their property. 
• Party wall agreements – These can apply to the floors and ceilings so it’s worth using a party wall surveyor to check for these.
• Access rights – With some buildings there might be access rights relating to the airspace or an obligation to not let the space.
• Restrictive covenants – Agreements between two landowners.
  

If you’d like to find out if your airspace is suitable for development, then you can find more information on our website here. At London Penthouse, part of our process is to help structure a deal and legal agreements that pave the way for rooftop development in the capital. We’re able to offer a professional assessment of your building, including outlining where remedial works can improve communal areas to benefit all tenants.

Enquire today and speak to our professional, experienced team.