Aiming for the sky: What are air rights?

In South Africa, “air rights” are typically understood to be development rights that are approved for walkways, bridges or other constructed crossings over roads. These also include shared borders or public spaces, and frequently come to exist by linking two buildings. These rights are validated by the registration of a servitude of some kind. When the urge for growth in built-up areas develops, the areas above buildings, also known as “brown field”, (as opposed to “green field”) from the slab of the top level into the sky, will expand.

In general, property owners own the area above their buildings, and they are free to use it as they see fit as long as the necessary authorization has been obtained from the nearby neighbours and the local authority over the area in question. Any building on the ground must occupy “air space” in order to work; otherwise, the land is worthless. An owner’s “air right” effectively has no upper limit as long as it does not restrict regulated airspace for aviation, but it is likely limitless otherwise.

The Sectional Titles Act 95 of 1986, which states that a developer retains the actual right to extend under section 25 of the Act, permits extending over a structure in South Africa if all rights are in order.

Developer A may open a sectional building with a height of 100 meters, retain a real right to extend into the air above the building, and develop or sell Developer B the additional 200 meters of “air rights” that Developer A has reserved as a genuine right to extend. This actual extension right may be further developed and offered for sale to sectional title owners.

Local government must look to the sky if it wants to produce something from nothing. Government can encourage the creation of previously non-existent sky parcels under a supportive legal context. This would present fresh chances to build housing that benefits the underprivileged.

There are two ways to protect an asset’s air rights:

1. The acquisition of the property: Developers can purchase existing structures, demolish them, and build new ones that optimise the available air space, such as a 72-story building where a 2-story building currently sits.
2. Transferable Development Rights: If a developer wants to buy the air space above an existing building, whether to build out horizontally from an adjacent building or to preserve a view, they can do so by purchasing the air space from the current owner. This will grant them Transferable Development Rights to the space.

In conclusion, even though we may not frequently refer to air rights, airspace, or “brown fields” in South Africa, we do have a method of establishing such a right, regardless of what it is named.

WRITTEN BY LIZANNE SCHOLTZ

This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).