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Helping You Navigate Complex Legal Issues

Property rights: the rocks and the trees and the drones in the sky?

Gregory A. Lang

When you buy property, what exactly do you buy? Do you buy what is on the ground, like trees and rocks, as well as what is in the ground, like, say, shale and water? Law students -- and real estate professionals, come to think of it -- learn to refer to property rights as a "bundle of sticks." A friend of ours prefers to say that property rights are like pantyhose in the dryer; they can be a tangled mess, and it takes time and patience to untangle them.

The point is that It is possible to bargain away some of the sticks without losing the others. The past few years, for example, landowners in the Bakken Shale region have been selling their mineral rights to gas and oil companies. The landowners still live on their property, still grow crops or raise livestock, while the gas and oil company drills down and taps into the gas deposits deep beneath the surface of their property.

The question of mineral rights brings up another point about property rights. Traditionally, when you own a piece of land, you own it from the center of the earth up to the heavens -- this is why someone can sell the mineral rights without selling the lot. So, a landowner can also sell the rights to the air above the land. This is as much of an issue in the wide expanses of the Midwest, but in densely populated areas like New York City, the right to build above an existing structure is fairly valuable.

Now, if you can sell one or more of the sticks in the bundle, it makes sense that you can protect your interest in the bundle, too. If your neighbor is parking on your lawn, you can take legal action. You are protecting your right to possess and to use the land you own. Similarly, if you have noisy parties into the wee hours of the morning, you might keep your neighbors up, too. They have the right to call the police. You are impinging on their right to enjoy their property.

You can protect each of those sticks, including mineral rights and your right to use the air above your property. And that brings us to a fairly recent phenomenon that has legislators, regulators and real estate attorneys wondering if a new threat to property rights has emerged -- in the form of a drone.

We'll explain more in our next post.

Source: Tiffany Real Property (3d ed.), Chapter 11. Rights of Enjoyment Incident to Ownership, September 2015, via Westlaw

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