Air Rights (AYU October 2024)

Presented by Kay M. Creasman, VP & Virginia State Counsel

Normally, as title insurance professionals we don’t give much thought to air rights. We may be aware of the old rule that when you owned the surface of land, you also owned as far to the center of the earth as you could go and as far to the heavens as you could use. Many things over the years have limited that old, traditional rule, especially airplane flight patterns.

In Virginia, as air rights have not typically been conveyed separately from title to the surface estate, it is usually not necessary to include a general exception to title or rights to airspace in any title insurance commitment or policy. But such severances should certainly be noted if they are found in a title search. A landowner may not only convey the right to develop air rights, but may also agree to a restrictive easement, or a developer or other grantor may set out vertical restrictions in a declaration or other covenants that run with the land. Property Owner’s Association or Condominium declarations or other documents may likewise limit vertical development. Conveyances, easements, and restrictions may be disclosed not only in title searches, but also in surveys. Title insurance commitments and the resulting title insurance policies should include exceptions as to any conveyance of or easements that govern the use of airspace above the property to which title is to be insured, whether such matters are disclosed in documents found in the chain of title or in surveys.

Easements for light and air are another example of how air rights may be quantified and conveyed. So-called conservation easements may also limit the ability of a landowner to develop his property vertically. Note that both easements for light and air and conservation easements must be recorded to exist; they cannot arise by prescription or, at least as between private landowners, by necessity.

One of the most unique requests for title insurance asked us to insure the air above the land in a campground site. The air space was defined by the distance from the ground up in the air, but the land itself wasn’t being insured. We declined.

The Virginia Solar Easements Act, Va. Code § 55.1-137 et seq., authorizes easements for the purpose of exposure of solar energy equipment, facilities, or devices, and sets out what terms such easements must include. Va. Code § 15.2-2288.7 limits local regulation of solar facilities. The Property Owner’s Association Act, the Virginia Condominium Act, and the Virginia Real Estate Cooperative Act also restrict such associations’ ability to prohibit the installation of solar panels on owner’s or lessee’s individual property. Specifically:

No association shall prohibit an owner from installing a solar energy collection device on that owner's property unless the recorded declaration for the association establishes such a prohibition. However, an association may establish reasonable restrictions concerning the size, place, and manner of placement of such solar energy collection devices on property designated and intended for individual ownership and use.

It is especially important to be careful to use thorough language when taking exception to restrictive covenants when insuring title to residential property because the ALTA Homeowner’s Policy insures against undisclosed rights of others to control the use of the property to which title is insured.  Be sure to review restrictive covenants when underwriting title for the Homeowner’s Policy.

As always, contact VAUnderwriting@OldRepublicTitle.com with any questions.