(Ontario Real Estate Source)
By Brian Madigan LL.B.
Boundaries in the Airs
When we are talking about airspace, we are really dealing with two issues:
1) building, and
2) travelling around.
When it comes to building the question is "how high is up". What are the lateral and vertical boundaries of the property above the ground?
Actually, they expand somewhat according to the "cujus est solum" doctrine. They widen out towards the heavens in a conical shape, as they do in the subsurface approach towards the centre of the earth. But, this time they narrow to a fine point at the centre of the earth when theoretically everyone is everyone else's neighbour.
Now, that's a fairly self-centered legal doctrine for the ownership of the stars in outer space, however, that the way it goes.
Now, back to reality. How high is up? The courts have come up with a legal principle that provides the owner of the horizontal surface on the land with the right to build up about as high as he can build. The test is what is reasonable under the circumstances plus some latitude. So, at one time, the Empire State building (381 m) might have been close to the upper limit, recently it would be the CN Tower (553 m), and now, the Baj Kalifa tower in Dubai (828 m).
The next right is the right to air travel. That has occurred only within the last 100 years. So, at some point above the earth, the airspace is considered "public property". In addition, there must be closer and closer limits in order to permit landings and takeoffs to occur. These approaches and airspace laws are regulated by statute. In Canada, it is Parliament, or the federal government which has jurisdiction to enact such legislation.
But, there are also "over swinging rights". This is a little closer to the ground. A wants to erect a tall building on his land. Modern construction technology requires the use of cranes. The cranes will swing over the lands of adjacent property owners B, C and D during construction. Can A do this?
The quick legal answer is "no". In an English case known as Anchor Brewhouse v. Berkeley House (1987), a high court issued an injunction to prevent the swinging crane. Of course, permission could always be negotiated for a price. This case has been followed in other common law jurisdictions, and although it is not binding, it is indeed persuasive.
This same legal principle prevents overhanging eaves, soffits, fascia, protruding windows, doors, solar panels, chimneys, antenna, satellite dishes, wires and other projections that might interfere with someone's "airspace".
There are two types of rights in the geometric area above the land:
1) possessory rights (that would apply to construction)
2) rights of use (that would prevent or restrict travel within that space).
The legal cases, seem to permit an action in trespass for both rights, however, some courts believe that the proper remedy for an overswinging crane would be an action in nuisance. This matter has not been resolved by the Supreme Court of Canada as yet.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com
