By Nafsika Palbas

28 February 2017

What are Air Rights?
Put simply – air rights are the rights to the air above the surface level of a property.
In property law, depending on what the title provides, a landowner may own both the physical land described on the title as well as the air rights above the physical land.
For the most part, owners maintain ownership of both the physical land and the air rights above it and do not sever the connection between the two. However, in various circumstances, this connection is severed by a sale of the air rights.

Why Acquire Air Rights?
Air rights represent an untapped and valuable commodity for adjoining landowners and developers.

As the population and housing density increases in Victoria, the acquisition of air rights offers numerous advantages, including the ability to acquire air rights above existing dwellings or infrastructure in key locations, the opportunity for the built form of developments to protrude over adjoining properties thereby possibly increasing net lettable area and/or preserving the development’s views.

Examples of an Air Rights Acquisition Overseas
One of the most high-profile overseas examples is Donald Trump’s acquisition of the air rights of buildings around Trump World Tower in New York. This included the air rights above Tiffany & Co’s 5th Avenue store for a reported $5 million.(1) The purpose was to preclude any neighbouring properties from obscuring the tower’s views.

Examples of Air Rights Acquisitions in Victoria
Air rights are becoming more common in Victoria as developers seek to access areas that would otherwise not be accessed.

In 2016, the rooftop of the former Foy & Gibson factory at 68 Oxford Street, Collingwood and the air rights above it was sold with a permit and designs for a multi-story penthouse for a sum reportedly in excess of $1 million.(2)

In South Yarra, the developer of Yarra House at 18 Yarra Street bought multiple apartments in the adjoining low-rise building 19 Yarra Street. This secured the developer the right to veto any attempt to sell 19 Yarra Street or to redevelop it to increase its height, thereby protecting 18 Yarra Street’s views.(3)

In Southbank, the developer of 25-27 Coventry Street acquired the air rights above the adjoining 21-23 Coventry Street. It then sought to amend an already approved scheme for 25-27 Coventry Street so as to allow the proposed tower’s built form to cantilever above the adjoining property from level 5 upwards.(4)

How can we assist you with Air Rights?
Air Rights law is a specialised area of property law and it is critical that you receive the right advice from a law firm that is experienced in these types of transactions.

At Tisher Liner FC Law we have a highly qualified and experienced team of lawyers who specialise in Air Rights law and who have assisted clients with selling and acquiring air rights throughout Victoria.

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