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Drones, Air Rights, and the Law

A Quick Overview of Air Rights 

Virtually all property in the United States subscribes to "The Three Estates" principle which divides real estate property into distinct, separable ownership components: the surface estate (land use), mineral estate (subsurface resources), and air estate (vertical air rights). While traditionally owned together, these can be severed (thereby creating split estates), allowing different parties to own or lease the surface, mineral, or air estates independently. We will focus on the air estate as it pertains to property rights. 

 

In the US, the Federal Aviation Administration (FAA) governs navigable airspace, which has traditionally been understood to begin around 500 feet in most residential areas and extend upward to the heavens for commercial aviation and other uses. By law the FAA controls all navigable airspace above 500 feet, but the law ALSO says property owners have a say below that. How much say is legally still yet to be determined—and property laws vary state to state—but the arrival of commercial drones pose new legal questions that will demand answers.

 

In United States v. Causby, the Supreme Court held that while the government controls navigable airspace, a property owner still has rights to the airspace "necessary for the use and enjoyment of their land"—and that low, frequent and disruptive flights directly interfering with that use amount to a "forced taking" or trespass. That means drone flights at extremely low altitudes will also likely fall into that same criteria for trespass.

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The Extreme Low-altitude Airspace Question

Commercial drones are increasingly operating in the space between roughly 250 feet down to the surface of the land—what we refer to as Extreme Low-altitude Airspace (ELA). Drone operators often rely on FAA approvals to conduct these flights, and in many cases, those approvals are valid. But within that ELA band, things become more complicated. And it's here that property owners certainly do have a say.

 

Private Air Rights Are Enforceable

That’s because property rights and longstanding legal principles enforce the "Three Estates" principle associated with property ownership-- that means the air rights that come inherent with the air estate matter greatly. "Air rights" have come to be defined as the right to utilize the open space above a property's surface within restrictions set by local zoning laws and federal aviation regulations. And in this case "utilize" can mean "monetize". Air rights are well-known in places like New York City where they are sold or leased accordingly, usually related to skyscrapers. But these air rights still apply at low altitudes elsewhere in the US—especially when activity directly affects the use and enjoyment of homeowners and their property. While drone companies may have FAA permission to operate in the airspace generally, that does not necessarily mean they have unrestricted rights everywhere or under all conditions. In addition to the FAA, drone companies also need to be talking to property owners to address their private air rights.​

Know Your Air Rights

When Extreme Low-altitude Airspace drone activity becomes frequent, intrusive, or disruptive, it can raise legitimate concerns for property owners. In certain circumstances, such activity may cross the line into interference with property rights—opening the door to complaints or legal remedies.

 

So Why Should Drone Companies Get a Free Pass?

If Amazon, Google, Walmart or any other drone-based delivery company expects to fly over private land as part of their business model, why should they be exempt from the same property laws that apply to other industries?
 

  • Pipelines and power lines can’t cut through someone’s land without a signed lease, which means compensation.

  • Oil companies can’t extract minerals without paying to lease.

  • Utility companies can’t install infrastructure without securing an easement or right-of-way—which they pay for.

  • Even airlines, which operate in public navigable airspace, still have to comply with land-use restrictions when it comes to takeoff, landing, and low-altitude operations.
     

So why should drone companies be able to use the ELA over private airspace (0-250 feet) for commercial purposes without permission or compensation? Our position is simple—they shouldn't. A strong argument can be made that these companies are, in effect, trespassing and therefore using private property to conduct profitable business—but doing so for FREE.
 

The Case for “Sky Easements”

What we're proposing—requiring companies to secure "sky easements" or "air easements" from landowners before flying drones over their land—makes sense from both a legal and ethical standpoint. Here’s why:
 

  1. Landowners Still Own Their Air Rights – Unquestionably the FAA controls all navigable airspace above 500 feet. But as for airspace below 500 feet, in United States v. Causby, the Supreme Court confirmed property owners also retain certain rights in the airspace tied to their land—and like surface or mineral rights, those rights have real value..

  2. Trespass Laws Should Apply – If a person or vehicle can’t legally cross someone’s property without permission, then why should a drone? A drone entering Extreme Low-altitude Airspace without consent is functionally trespassing.

  3. Liability and Risk – A drone crashing onto someone’s land could damage property or injure someone. If a company is flying drones without consent, the landowner shouldn’t bear the risk.

  4. Compensation for Use – Just like pipeline and utility companies pay landowners for easements, drone companies should pay for the right to operate in privately owned airspace.

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Drone Companies Need To Adopt a Dual Approach and Compensate Property Owners
Much like an oil company negotiates surface damages with a landowner (the surface estate) but drills on minerals owned by another party (the mineral estate), overlapping jurisdictions can cause problems so they deal and compensate the owners of both estates. It’s a good-faith practice that keeps all parties aligned. Drone companies would be wise to take the same approach—working with property owners concerning the air above them (the air esate), alongside FAA authorization, to ensure their operations are transparent, coordinated, and broadly acceptable.

This is exactly why surface estate and mineral estate easements exist. So just as pipeline and utility companies require an easement to cross private property, whereby the property onwer is compensated, it follows that commercial drone operators should, in principle, be required to obtain a "sky easement" if they’re flying within privately owned air estate. Because when low-altitude drone activity becomes frequent, intrusive, and disruptive, it stops being harmless overflight and starts looking a lot like the uncompensated use of private property—something no other industry gets away with.

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