Airspace - more valuable than land ?

12 June 2014

Law relating to airspace in northern ireland

An interesting question which often arises in high density, high-land value areas such as London, where pressure on land is intense, and less so in the comparatively lower-density/value area of Northern Ireland, is the ownership and control of airspace above buildings.

The classic starting point in any legal analysis is that in the absence of an express provision to the contrary in the title deeds or lease, then the owner or tenant of the land on which the building sits, owns or leases everything “up to the sky and down to the centre of the earth.” Accordingly if the issue is overlooked or ignored when buying, selling or leasing land and buildings, the consequences can be costly and opportunities can be lost.

This was amply demonstrated in a recent English High Court decision (H Waites –vs- Hambledon Court and Others) where the freeholder of land on which twelve garages had been built, wished to construct flats above the garages and obviously needed to show ownership of the roof and airspace above the garages in order to do so. Each garage was held under a separate 999 year lease and although the garage block had a common roof comprising continuous asbestos corrugated sheeting, the court held the tenant of each garage was entitled to the possession of the section of roof over his garage and the entirety of the airspace above it. Crucial in the court’s reasoning was the absence of any horizontal division in the lease documents and the fact that each 999 years lease was tantamount to a freehold. So no development could be undertaken without each tenant’s consent.

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