Using Your Neighbor’s Airspace in Today’s Construction Projects

by Snell & Wilmer
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Since at least the times of the Ancient Greeks, cranes have been an important part of a construction project. Modern building designs and construction techniques have made cranes integral to today’s development projects. Increasingly, as old buildings are replaced and vacant spaces are in-filled among existing properties, the use of cranes requires crossing the airspace of a construction project’s neighbors.

Owners and contractors should determine whether the safe and efficient operation of a crane can be achieved without crossing over and through the airspace of neighbors. If the answer is no, it is advisable to secure temporary easements or licenses from those neighbors. Those use agreements should include the typical provisions found in temporary construction easements concerning duration, location of activities and restrictions on use. In addition, the agreements should include provisions specific to the use of cranes, such as granting the jib the room to swing with the wind when not in use, allowing for the passage of the jib for the purpose of constructing the improvements and transportation of construction materials and use of specified portions of the neighbors’ property for access to portions of the developer’s project that are accessible only from the neighboring airspace. The airspace agreement should name the beneficiaries of the agreement as the owner or developer and his or her contractors, subcontractors and suppliers. Finally, the agreement should take care to adequately define the “airspace” within which the owner or developer is permitted to operate. This will typically require language that is specific to the site and the project.

If a neighbor is not willing to execute a temporary easement or license agreement, then the party seeking to temporarily utilize the airspace above the neighbor’s property runs the risk of committing a trespass. Although the actual monetary damages associated with airspace trespass would typically be quite low or de minimus, the real risk involved is the neighbor seeking to enjoin the use of airspace, potentially causing significant delays to the project.

Despite the important role that cranes play in today’s construction projects, there is relatively little legal authority outlining the rights and obligations of those utilizing cranes in building projects vis-à-vis their neighbors’ airspace. The reason for this appears to be that any such “trespasses” are temporary and usually cause no actual damage. There are, however, a few cases providing some details that could become important if a neighboring owner were to bring a lawsuit to try to enjoin the use of a crane that happens to pass a neighbor’s airspace.

Historically, American courts have held that the owner of real property owns everything below the surface of the earth, extending infinitely into the airspace above the surface. However, with the advent of modern aviation, this general rule has been substantially circumscribed. In the United States Supreme Court case of United States v. Causby, the Court held that the flying of airplanes over a farm at elevations as low as 83 feet did not constitute a trespass. The court reasoned that a landowner “owns at least as much of the space above the ground as he can occupy or use in connection with the land.”

In the construction context, several courts have applied the Causby reasoning, attempting to balance the neighboring owner’s private property rights against the reasonable need of the contractor to temporarily utilize the airspace. A very instructive case on this point involves the use of scaffolding. In Slotoroff v. Nassau Associates, a case from New Jersey, a neighbor tried to prevent the owner of a nine-story building from erecting scaffolding that overhung the neighbor’s property, but did not touch it. The scaffolding was needed in order to resurface the nine-story building. The neighbor contended that the scaffolding was trespassing. The court held that because the scaffolding was not interfering with the neighbor’s use of its property, the neighbor could not maintain the lawsuit. The court emphasized that the scaffolding was temporary and that the result might be different if the scaffolding were permanent.

Similarly, in Geller v. Brownstone Condominium Association, the owner of a smaller residence sued a neighboring condominium tower for utilizing a mobile scaffolding machine in the airspace above the residence. The court refused to allow the homeowner to prevail. Although the court recognized that the homeowner is entitled to own and use as much of his air space as he could “practicably use,” the court would not allow the homeowner to prevent the condominium tower from using a scaffolding machine on a temporary basis.

As for cases directly involving cranes and charges of airspace trespass, only two U.S. cases directly address this issue. The first is a case from Louisiana where a neighbor sought to enjoin the use of the crane. Whitney National Bank of New Orleans v. Poydras Center Associates. The court agreed that the use of a crane over a neighbor’s property would constitute a trespass, but the court did not schedule a hearing until after the crane had completed its work. As a result, the court refused to issue an injunction. The other case involved a construction case in Texas. See Auburn Investments v. Lyda Swinerton Builders, Inc. As with the other cases, the court refused to issue the injunction against crane use, even where the neighbor brought evidence of fear of damage.

In sum, the best approach is to enter into a sufficiently detailed temporary airspace easement or license agreement under which the neighboring property owner agrees to allow the owner or developer to use the airspace above his or her property for so long as is necessary to complete the required work. If that is not possible and a neighboring property owner refuses to enter into a temporary easement or license agreement, the critical points to keep in mind in using a neighboring owner’s airspace are to make sure the use is minimized and temporary. The courts, from the above cases, are not sympathetic to neighbors who act as bad neighbors and attempt to prevent minimal intrusions of airspace that are needed to develop a property. But, for obvious reasons, this same inclination would not exist if there were actual damages resulting from the use of a crane. For these reasons, owners and contractors should carefully consider ways to limit airspace intrusions and to work with neighbors to secure airspace rights. Where agreements are not possible, owners and contractors should take every care to minimize the intrusions and to complete the work requiring a crane in a manner that is as expeditious and safe as possible.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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