A developer buys the right to build a structure over a railroad line without owning the ground below. What property right is this?
Correct Answer
D) An above-surface (air) right
Above-surface rights, also called air rights, extend upward from the surface and may be acquired to build transportation improvements or to construct one building over another. They can be owned separately from the surface.
Why This Is the Correct Answer
Option D is correct because above-surface rights, also known as air rights, extend upward from the surface. They may be acquired to build transportation improvements or to construct one building over another. They can be owned separately from the land below.
Why the Other Options Are Wrong
Option A: A subsurface mineral right
Option A, a subsurface mineral right, concerns resources below the ground. Building a structure above a railroad line uses space above the surface, not below it.
Option B: A riparian water right
Option B, a riparian water right, concerns land next to a river or stream and the use of its water. It has nothing to do with building over a rail line.
Option C: A revocable license
Option C, a revocable license, is temporary permission that can be withdrawn. The developer bought the right to build a permanent structure, which describes an ownership interest in air space rather than a license.
Up is air
Rights going up into the space above the land are air rights; rights going down are subsurface rights.
How to use: Use the direction, up or down, to name the property right involved.
Exam Tip
Watch for a structure built over something the buyer does not own. That points to air rights.
Common Mistakes to Avoid
- -Confusing air rights with subsurface rights
- -Treating a permanent purchased right as a revocable license
- -Assuming air rights cannot be separated from the land
Concept Deep Dive
Analysis
This question tests your knowledge of the separate rights in the bundle of rights. Building a structure over a railroad without owning the ground uses the space above the surface. That right is an above-surface right, also called an air right.
Background Knowledge
Real property rights can be divided into surface, subsurface and above-surface rights. Air rights can be sold or leased separately from the land, which allows development over railways, highways or other buildings. Appraisers may be asked to value these separated interests.
Real-World Application
A city sells the air space over a rail yard to a developer who builds an office tower on a platform above the tracks. The railroad keeps operating at ground level. An appraiser values the air rights as a separate interest.
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