Do I have any authority over airspace above my land?

Question

With all this talk about drones flying around and delivering parcels for the merchant websites, I'm wondering from a "landlubber's" perspective, how much say I have over the airspace of my private land.

Now I know this question is a bit broad and quite difficult because it might differ from country to country and also depend on the size of the land, for instance a farm vs. a house in the city. It might also be interesting to know how it affects a piece of private land with a private runway.

But since it is sadly the norm these days for every country to follow Europe's lead eventually on these kind of privacy issues, Europe's might be the most relevant in the end. Any general insight from you all on this would be very informative.

Answer 1

In the US you have, effectively, zero rights over the airspace above your land by default: Control of airspace is entirely delegated to the FAA, and they're super serious about it.

If you designate your land as an airport you can certainly establish a control tower and request an airspace designation from the FAA - whether or not they approve your plan depends on the existing airspace around you though: If your airport would create a problem for an existing airport you'd probably not be able to get an airspace designation for it, and it may even be classified as an objectionable airport.

Answer 2

In Bernstein of Leigh v Skyviews [1978] 1 QB 479, the High Court of England and Wales held that, at common law, the right of a landowner to the airspace above their land was "to such height as was necessary for the ordinary use and enjoyment of his land and the structures upon it".

As another answer has suggested, the use of UK airspace is now regulated by statute.

Section 76 of the Civil Aviation Act 1982 says:

No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and of any orders under section 62 above have been duly complied with and there has been no breach of section 81 below.

In other words, you may fly an aircraft at a height that is reasonable, subject to any specific regulations.

For example, rule 5 in schedule 1 of the Rules of the Air Regulation 2007 prohibits low flying in certain circumstances, such as below 1,000 feet over a congested area of a city, although there are various exemptions to those rules. For the detail, consult the regulations. Update: This is now rule 5 in schedule 1 of the Rules of the Air Regulation 2015.

What this means in terms of a landowner's right is that:

1. their rights do not extend beyond what is "necessary..." in accordance with Bernstein of Leigh whatever the specific rules on aircraft may say
2. additionally, the landowner's rights are restricted by the CAA and the rules made under it, so that an aircraft that complies with the rules and flies no lower than is reasonable etc does not commit a trespass or nuisance.

Answer 3

This will differ from country to country, but I will give an example based on the German law, so you can derive how countries can work with airspace.

In general, following BGB §905, the airspace above and ground below your property is also yours, unlimited.

Das Recht des Eigentümers eines Grundstücks erstreckt sich auf den Raum über der Oberfläche und auf den Erdkörper unter der Oberfläche.

But this is not the only relevant law, i.e. there are others that need to be looked at, such as those pertaining to airspace use in Germany, the LuftVG §1:

(1) Die Benutzung des Luftraums durch Luftfahrzeuge ist frei, soweit sie nicht durch dieses Gesetz, durch die zu seiner Durchführung erlassenen Rechtsvorschriften, durch im Inland anwendbares internationales Recht, durch Rechtsakte der Europäischen Union und die zu deren Durchführung erlassenen Rechtsvorschriften beschränkt wird.

The bold part basically says that all aircraft can use airspace freely, so technically, the drone/rc copter above your land is legal. If you want to claim you are an aircraft, irrespective of the size requirements, there is a lot of additional rules that need to be looked at, e.g. LuftVO §6

(1) Die Sicherheitsmindesthöhe darf nur unterschritten werden, soweit es bei Start und Landung notwendig ist. Sicherheitsmindesthöhe ist die Höhe, bei der weder eine unnötige Lärmbelästigung im Sinne des § 1 Abs. 2 noch im Falle einer Notlandung eine unnötige Gefährdung von Personen und Sachen zu befürchten ist. Über Städten, anderen dicht besiedelten Gebieten, Industrieanlagen, Menschenansammlungen, Unglücksorten sowie Katastrophengebieten beträgt die Sicherheitsmindesthöhe mindestens 300 Meter (1.000 Fuß) über dem höchsten Hindernis in einem Umkreis von 600 Metern, in allen übrigen Fällen 150 Meter (500 Fuß) über Grund oder Wasser. Segelflugzeuge, Hängegleiter und Gleitsegel können die Höhe von 150 Metern (500 Fuß) auch unterschreiten, wenn die Art ihres Betriebs dies notwendig macht und eine Gefahr für Personen und Sachen nicht zu befürchten ist.

The bold part states that over populated areas, a minimum safe altitude of 300m / 1.000ft must be maintained, unless you are taking off or landing with your drone. There is a plethora of other rules and regulations that need to be followed as well, another good SE question is this What is the maximum altitude allowed to fly a model plane/copter in Germany?

Answer 4

In the UK, you have rights up to about 1000 feet

According to In Brief (a free legal-information website written by legal experts)

The common law distinguishes between two different types of airspace. The lower and Upper stratum.

The lower stratum is concerned with the portion immediately above the land and interference with this air space would effect the landowner’s reasonable enjoyment of the land and the structures upon it. Wrongful intrusions include; Overhanging branches of a neighbours trees and plants or projecting eaves or advertising signs and Booms of cranes being used for construction work on neighbouring land.

The Higher Stratum is something which exists above the height which is reasonably acceptable and necessary for the ordinary use and enjoyment of the land by it’s owner. The landowner has no greater rights to this airspace than any other member of the public.

S. 76 Civil Aviation Act 1982 states that ‘the lower stratum is unlikely to extend beyond an altitude of much more than 500 or 1,000 feet above roof level, this being roughly the minimum permissible distance for normal overflying by any aircraft’ (Rules of the Air Regulations 2007, Sch 1, s. 3(5)).

Answer 5

Interesting question. In the US, it appears that the guiding principal is the FAA's definition of Navigable Airspace (another item borrowed from sailing?). And that definition is changing.

In general this is anything above 500 feet, but of course there are exceptions. This document provides some guidance.

Answer 6

There is some case law that states that your privacy extends up to 87.5'AGL This was in application to a hovering 'drone' flyovers for other purposes probably does not apply. General flyovers of adjacent property would fall under the same rules and laws that govern manned aircraft overflight - FAA domain. Privacy laws seem to be more narrow to hovering. Expectation of privacy has many limitations. eg. if the paparazzi can see you with their long range cameras, then you do not likely have much of an argument re privacy. However if you have an 8' fence and there are no tall structures which allow a clear view, you might just have a claim - Property rights domain.

Answer 7

In the United States, air rights, especially with sUAS operation still remain vague and case law concerning them is not fully decided. The most succinct ruling that I know of in the subject is United States v Causby, 328 U.S. 256 (1946). Here the Supreme Court struck down the Heaven and Hell Doctrine, stating that navigable airspace over the United States was under the control and regulation of the Federal Government, not State or local governments nor property owners. To do otherwise would be cause for countless tresspass lawsuits over overflying aircraft. The Court, however, ruled for the defendant, citing that in his situation that the government had violated his 5th Amendment rights with low flying aircraft, stating that a property owner has ownership over airspace “within immediate reach”. In the case of Causby, heavy bombers flying 85ft over his ranch on approach to an Army Air Field did create a tresspass.

The problem here in modern times is that “navigable air space” for SUAS lies between ground level and 400 feet AGL. Cosby never gave a definition specific to wear a landowners property rights ended and when navigable airspace began. During the 1940s, it started at 500 feet AGL and as such is still remains vague to this day.

As a general courtesy, I will never over fly private property lower than 100 feet AGL, simply to give the landowners a little bit of space and not have the appearance of trust pass with flying a sUAS.