Airspace Ownership: what happens when a neighbour trespasses into your airspace?

In England and Wales, property ownership extends to not only the land itself but also the airspace above it to a certain extent. Understanding the general rule that property owners own the airspace above their land is essential for maintaining peaceful coexistence amongst neighbours.

The Law:

The general rule is that property owners typically have the right to control the airspace above their land. This principle is based on longstanding legal doctrine “cuius est solum eius est usque ad coelum et ad inferos”. This recognises that property rights extend to both above and below the surface. However, the extent of the airspace ownership may be limited to what is deemed to be a reasonable height above the land.

Determining what constitutes a reasonable height can depend on various factors, such as the neighbouring properties, practical considerations, local authority and planning regulations and the nature of the property.

Therefore, even though there is no precise definition of airspace ownership, property owners generally have exclusive rights to the airspace immediately above their land, allowing them to use and enjoy it without interference from others.

Trespassing into Airspace:

There may be an instance where a neighbour encroaches into your land and the airspace above your property’s boundary.

Where a neighbour encroaches without permission into your airspace, this can constitute trespass. Trespass into airspace can take various forms, such as:

1. Overhanging structures: If a neighbour constructs a building, roof, rainwater gutter, or any other structure that extends into your airspace, it could constitute trespass, especially where the structure overhangs into your boundaries deliberately.
2. Airborne activities: Unauthorised flying of, for example, drones over your property at low heights may also be considered trespassing, especially if it interferes with your quiet enjoyment of your land.
3. Nuisance: Even if a structure does not intentionally intrude into your airspace, such as where your neighbours fail to stop their tree branches from encroaching into your boundaries, its presence may still constitute a nuisance and/or unreasonably interfere with your use and enjoyment of the land.

Legal Remedies:

Before seeking legal remedies, your property title deeds should be reviewed to determine whether your property is burdened by and has rights granted to your neighbour’s which allows them the right to encroach into your airspace. The property deeds should also be reviewed to determine whether the ownership to the airspace above your property has been excluded from your ownership and instead owned by someone else.

If, however, there are no references to the ownership of and/or rights over your airspace and there is trespass by your neighbour, there may be several legal remedies available, including: