By law, whosoever owns land owns also the space above it and whatever exists in that airspace or under such land. In other words, whoever owns the land is the owner of the air overlying such land – the ownership extends vertically up to the sky, in terms of the Roman law principle usquae ad coelum.
Many property owners rely on the open overlying space to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels or to serve other uses that require no physical invasion of the overlying space.
It is an obvious fact that, today, more than ever, most of the territory of the Maltese islands is riddled and littered with giant construction cranes and related equipment stretching widely, vertically and horizontally over adjacent private properties.
It is a moot legal point whether whoever is responsible for the mounting and operation of such construction monstrosities has any right to make use of neighbouring airspace without having to compensate neighbours.
Would such use involve a physical invasion of one’s property or destroy all economically beneficial use of the property and, in such a situation, would the law be failing to protect private owners against these uncompensated takings of negative airspace easements?
Ancient legal aspects of airspace trespass will have to be reconciled with the modern use of architectural and engineering equipment used in construction. The traditional law view of ownership of airspace was originally he who owns the soil owns everything above.
The owner’s interest in superjacent airspace, as well as the land itself, was protected by the writ of trespass which was granted as a sort of punitive compensation, notwithstanding the fact that, in the usual case, little, if any, actual damage was inflicted.
Today, however, a private owner will never enjoy such wide-ranging rights as the maxim suggests.
It is obvious that in the context of the latter-day construction industry a rigid application of the doctrine cannot long survive, at least without substantial modifications.
Various and diverse theories, doctrines and interpretations of airspace trespass have appeared with the growth of such industry, not to mention also aeronautical technology. Should the traditional unqualified application of the doctrine be retained and duly compensated in case of trespass?
Is it time to have reasonable deviations from the ad coelum doctrine? Should there be any specific rule that a private property owner owns the airspace up as far as it is possible for him to take effective possession but beyond the ‘possible effective possession zone’ there should be no ownership in airspace?
Should such private property owner own only the airspace he actually occupies and can only object to such uses of the airspace over his property as to actual damage?
Today, most of the territory of the Maltese islands is riddled and littered with giant construction cranes- Mark Said
The increase in the number, size and use of construction cranes, drones and other airborne objects has raised the legal question as to the ownership of airspace, property rights and an owner’s right to sue for trespass.
So what would be the law in Malta in relation to the ownership of airspace and property rights?
While higher altitude airspace may well be considered as public ‘navigable’ air space, the ownership of lower altitude airspace over private property is more opaque.
Accepting that land includes a right to a certain portion of the airspace above, it follows that intrusions into an owner’s airspace require the agreement of the owner. In Anchor Developments Ltd v Berkeley House (Docklands Developments) Ltd , a court in England granted an injunction to prevent Berkeley’s crane from oversailing Anchor Brewhouse’s land.
The court reasoned: “If an adjoining owner places a structure on his (the adjoining owner’s) land that overhangs his neighbour’s land, he thereby takes into his possession airspace to which his neighbour is entitled. That, in my judgment, is trespass.”
Consequently, one can readily import such legal reasoning into Malta, laying down that any unauthorised intrusion into one’s private airspace is a trespass and any owner of a dwelling whose airspace rights are infringed can seek damages and/or an injunction to restrain the trespass.
The buildings we daily see going up around us force us to reflect on who we are as a society and stand tall against everything we throw at them. Private property owners would simply require from the mega construction industry two kinds of goodness: first, doing their practical and professional duty well and that they be graceful and pleasing in doing it.
Would that be asking too much of them?
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