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What are the Rights of a Property Owner – Use, Land, Water and Air Rights

what are rights of a property owner
Every property owner has the right to possession, control, use and quiet enjoyment, privacy and to exclude others, to dispose or transfer the property, and to use the property as collateral. Ownership rights also include the right to the surface, the subsurface, the water, and the air directly above the property. These rights can be modified if ownership type is not sole ownership, such as tenancy in common, joint tenancy with rights of survivorship, and tenancy by the entirety. It can also be regulated by the government depending on zonal laws and ordinances which provide for building codes. Although the rights of the property owner can be regulated by the government, the government cannot absolutely take private property for public use without just compensation.

Basic rights of a property owner

The basic rights of a property owner include the right to possess, control, dispose, enjoy, exclude others, and use the property as collateral. These rights include the right to use the surface of the land, such as the right to erect structures, to farm or utilize trees, plants, and water aboveground, and to dig down until a particular depth for the purpose of installing septic tanks.

The rights of a property owner also include subsurface rights or the right to use what is under the land, such as the extraction of oil, gas, and minerals. Subsurface rights are a valuable asset and may be sold or leased separately from the land. Limitations and restrictions on subsurface rights need to be disclosed in the title deed upon acquisition. Consequently, the sale or lease of subsurface rights should include the right to make reasonable use of the surface lands as necessary and proper for the completion of extraction operations.

Water rights (known as riparian rights) are also one of the rights of a property owner. This is the right to any water on the property including right to make reasonable use of flowing water that passes through the property. Riparian rights are normally used for landowners with properties adjoining a body of water. Examples of how this right is exercised are the rights to access for swimming, boating and fishing, the right to erect structures such as docks, piers, and boat lifts, and the right to exclusive use if the waterbody is non-navigable.

Right to airspace

The property owner’s right to airspace should be distinguished from the navigable airspace, which belongs to the public, is open to air travel, and is regulated by the US Federal Aviation Administration. The property owner’s right to airspace or the use of air directly above the property refers to its own height restriction, as regulated by the local government based on building codes, zoning restrictions, and ordinances. It also includes the right of the property owner’s airspace to be free from encroachment from adjacent buildings. For example, an adjacent building cannot build a rooftop that extends and encroaches on the airspace of another property. The property owner’s right to airspace becomes more valuable in dense, highly urbanized cities such as New York. The airspace of a one-story building in Lower Manhattan in a zone which allows the construction of very tall buildings is more valuable than the value of the building itself, just because a developer can demolish the existing structure to build a higher building, consistent with the maximum height restriction and airspace provided by the local government.

The property owner’s surface, subsurface, riparian, and airspace rights are always subject to the reasonable use requirement. The proper owner’s rights to his own property are not absolute because such exercise of right might cause damage to adjacent properties. For this reason, the rights of a property owner are subject to reasonable use, and this reasonable use is a defense in case the exercise of the property owner’s rights causes damage to an adjacent property owner.

Restrictions and Limitations on property ownership

The rights of a property owner also depend on the type of property ownership. Aside from sole ownership, there are three forms of co-ownership: tenancy in common, joint tenancy with rights of survivorship, and tenancy by the entirety. Sole ownership occurs when there is only one owner of the property. This sole owner exercises all the property rights over the property. In co-ownership, the right to dispose of the property is exercised by the unanimous approval of all the co-owners. This can make actions relating to management and disposition of the real property difficult. For this reason, generally, a co-owner can dissolve the co-ownership by going to court and requesting the court to physically divide the property or sell it and divide the sales proceeds among the co-owners in an action for partition.

Government regulations on the rights of a property owner

The Fifth Amendment of the US Constitution provides that private property shall not be taken for public use without just compensation. In this case, it is quite clear that the government’s power of eminent domain or expropriation, which is to take private property, depends on public use and the payment of just compensation. When the government tries to take private property, two issues should always be considered: whether the government is taking it for public use, and the whether the amount being offered for compensation is just.

When the government, however, establishes rules to restrict the use of private property in the interest of safety and health, there is a partial restriction or taking of private property without just compensation. Examples of these restrictions refer to building codes or zoning ordinances. Zoning ordinances and building codes can restrict the locations of trades, industries, and buildings designed for specified uses to particular areas. The heights of the buildings can also be restricted, as well as the way a building is built, which should be in compliance with minimum safety standards.

Property owners, however, have raised issues on the government’s apparent taking of private property without payment of just compensationthrough the enactment of more pro-tenant rent stabilization laws to the detriment of property owners. As an example, in New York City, some property owners have sued the local government for violating their constitutional rights by forcing them to renew rent-stabilized leases for as long as the tenant or the tenant’s family members decide to live there. These property owners have argued that the new laws have severely restricted their property ownership rights without payment of just compensation.

If you have any issue regarding your rights as a property owner, we at the Law Offices of Albert Goodwin are here for you. You can call us at at 718-509-9774 or email at attorneyalbertgoodwin@gmail.com.