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Dwayne B.
Dwayne B., Attorney
Category: Real Estate Law
Satisfied Customers: 33774
Experience:  Began practicing law in 1992
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In Dallas TX, does an adjacent property's owner need to

Customer Question

In Dallas TX, does an adjacent property's owner need to obtain the "Air rights" to swing a construction tower crane over an existing condo's air space?? The condo owners' are represented by an HOA. Thank you
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Submitted: 12 months ago.
Category: Real Estate Law
Expert:  Dwayne B. replied 12 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

Customer: replied 12 months ago.
Where is your answer to my question??
Expert:  Dwayne B. replied 12 months ago.

This is one of those areas of the law that have almost no cases on it. In Texas, it is generally accepted that the owner of land owns the air rights above that land but if someone wants to use it in a situation like you describe it would only be a "trespass" if the landowner owns a structure or is making use of the air rights at the level where the crane will pass.

In other words, if the land only has a one story structure on it that is twenty feet high (total) and the crane will pass at a height of 100 feet, they would be allowed to do so without getting permission. Of course, if they do some kind of harm then the crane operator would be liable.

Expert:  Dwayne B. replied 12 months ago.

There was a case filed in Houston a year or so ago dealing with this, 1885 St. James Place Partners LP, vs. Finger-FSC Yorktown.

Expert:  Dwayne B. replied 12 months ago.

In that case, St. James Place cited law that stood for the proposition "aerial rights in property extend only to the altitude of the property owner's existing and effective reasonable use of the land."

Expert:  Dwayne B. replied 12 months ago.

I haven't see that case go up on appeal yet and it hasn't been filed long enough to have reached an "ultimate resolution" through all the courts.

Expert:  Dwayne B. replied 12 months ago.

That case was dealing with aerial rights and "trespass". There could also be an issue, with the right facts, where the use of a crane could cause a "nuisance" in extending over the property.