The term “air rights” is frequently used to refer to an estate or interest in land bounded by horizontal as well as vertical planes above the surface of the land of which it was a part prior to severance of ownership.
Although a description of land includes both the soil underneath it and the air space above it, it is possible to have different ownership of the surface, the air space above the surface, and the soil beneath the surface. If the Title Underwriter is satisfied that an estate or interest has been created in air space, it may be willing to issue a title policy on that estate or interest.
Insuring air rights is difficult because of the non-standard way of describing the property being insured. The legal description should refer to vertical and horizontal planes which are the boundaries. Also, coverage should not be given unless there is access and a means of support from the surface of the land below the air space if applicable.
Another form of insurable air rights is a view easement. This is in the nature of a negative easement whereby an adjoining property owner restricts their property as to the height of improvements which may be constructed.