Property doesn’t stop at the surface of the dirt, your citeless flight from the facts notwithstanding.
Avigation Easements
By: Ronald D. Steinbach, Attorney at Law
1. Introduction.An easement is the right granted to a third person to use your real property in a specified manner. An easement may be given, for example, for overhead wires, underground gas, power, sewer or storm drain lines, for sidewalk or street purposes, for neighbors to maintain their views, or even for airplanes to fly over your home on a regular basis. The latter right refers to an avigation easement, which is sometimes called an air easement or aircraft easement.
Most parcels of real property are affected by easements along the exterior boundaries or adjacent to the street. Those easements usually do not interfere with development of the property or cause a reduction in value of the property. By way of contrast, easements that cross the middle of the property or cover the entire property may cause serious reductions in value, or cause the property to have little or no value.
2. Condemnation of Avigation Easements and other Methods of Acquisition.
California law expressly authorizes a government agency operating an airport to condemn avigation easements. California Public Utilities Code section 21652 states in relevant part as follows:
"(a) Any person authorized to exercise the power of eminent domain for airport purposes may acquire by purchase, gift, devise, lease, condemnation, or otherwise: . . . (2) Airspace or an easement in such airspace above the surface of property where necessary to permit imposition upon such property of excessive noise, vibration, discomfort, inconvenience, interference with use and enjoyment, and any consequent reduction in market value, due to the operation of aircraft to and from the airport."
Condemnation is a legal proceeding whereby a homeowner is forced to sell his property, or a portion thereof. A real estate appraiser is hired to determined the value of the property interest being taken, and the court determines the value in the event the parties cannot agree. In the case of an avigation easement, the appraiser determines the decrease in value of the home caused by aircraft constantly flying over or nearby. This amount is paid to the homeowner, and thereafter the homeowner can no longer legally complain. This is because the homeowner has been compensated for the nuisance, and he can either keep his home and tolerate the noise or sell his home and move to a quieter neighborhood.
A government agency can also, of course, purchase an avigation easement from a property owner, or receive a gift of such an easement.