Generally, ownership of a piece of real estate includes the house, the land beneath it, and a presumed right to the air above it. But in Texas, the concept of owning the airspace above one’s home has caveats. While Texas real estate law generally supports a homeowner’s rights to the airspace immediately above their land, there are limitations.
Traditional Property Law Understanding of Airspace
Traditionally, property law was rooted in the idea that whoever owns the soil owns up to the skies and down to the depths of the earth. However, this doctrine changed in the 20th century with the development of air travel. In United States v. Causby (1946), the U.S. Supreme Court rejected the notion that landowners own all the airspace above their property. The Court held that although landowners do not own the airspace in its entirety, they do possess rights to the “immediate reaches” of the airspace necessary for the use and enjoyment of their land.
Federal Law and FAA Regulations
In the United States, airspace regulation falls largely under the authority of the Federal Aviation Administration (FAA). The FAA has jurisdiction over navigable airspace, typically beginning at 500 feet above ground level in uncongested areas and 1,000 feet in congested zones (and anything above these thresholds). Below those altitudes, the situation becomes more technical.
Homeowners may have limited rights to the airspace immediately above their property to prevent unreasonable invasions or nuisances. However, they do not own or control the airspace at higher altitudes used for commercial or private aircraft.
Texas Law and Low-Altitude Use
Texas courts generally recognize a property owner’s rights to the lower altitudes of airspace where intrusions may interfere with the enjoyment of land. Texas courts have considered whether low-flying aircraft or drones constitute a nuisance or trespass.
In some cases, Texas law may allow a homeowner to pursue claims for trespass, invasion of privacy, or nuisance if low-altitude intrusions (such as drone flights) interfere with the reasonable use of the property.
Texas has also enacted legislation aimed at protecting privacy from aerial surveillance. The Texas Privacy Act prohibits certain drone activities that capture images of individuals or private property without consent.
How Far Below the Ground Do Texas Homeowners’ Rights Extend?
Just as Texas homeowners don’t own the full sky above their property, their ownership beneath the surface of their property is also subject to legal boundaries.
In Texas, land ownership is typically divided into two key components: surface rights and mineral rights. Surface rights give the property owner control over the surface of the land and a limited depth below it for ordinary use of the property, such as digging foundations, installing pools, or building basements.
Mineral rights govern the ownership and control of subsurface resources like oil, natural gas, and other minerals. Importantly, these two categories of rights can be separated, meaning that a homeowner might own the land and house above ground, but not the valuable resources below it.
The Bottom Line
For Texas homeowners, it is vital to know where ownership starts and stops. As a homeowner, you generally control the space you need right above and beneath your property to use and enjoy it. Beyond that, federal rules cover navigable airspace, and you don’t own the sky where air travel occurs.