Navigating Air Rights: Lessons from a Deck Dispute

“Your deck is going to be hanging over my property!” That was the exclamation from a neighbor upon reviewing our plans for a new custom project.

This unexpected claim led us down a path of discovery and resolution that I believe holds valuable lessons for any real estate developer.

Initially, we were baffled. Had we made a mistake? Was it the architect, or perhaps an outdated survey?

As it turned out, it was a combination of all three.

The property had been acquired in haste, relying on an old survey, and our architect had worked off a previously submitted set of plans.

Our vision for the building included large, expansive decks, and that’s precisely what we designed.

When the neighbor approached us, we openly shared the plans.

He informed us that he had negotiated an easement with the previous owner, allowing him to extend his fence to accommodate his driveway, and had been paying property taxes for that strip of land ever since.

Upon reviewing the properly recorded easement agreement, we discovered that the easement was non-exclusive.

Technically, while it permitted him to use our property, it didn’t prevent us from utilizing the same space—or the air rights above it.

In practice, our deck would have extended over his fence by merely a foot and spanned no more than 3 feet in length.

Having a legal argument was not worth it.

Fortunately, the solution was simple, and the fix was easy to implement.

This experience was a good reminder that even the most meticulously planned developments can face unforeseen challenges, and how we address them can make all the difference.