A deed expressly conveys a defined three-dimensional airspace interest above a parcel to an adjoining developer, subject to zoning and permit requirements. Which interest is conveyed?
Correct Answer
D) The specified space above the parcel
The stipulated deed conveys a defined airspace interest above the parcel, subject to its terms and applicable law. This differs from surface occupancy, minerals and a crossing easement. Transferable zoning development capacity may be a different right; identify the actual instrument rather than equating every transaction labeled air rights.
Why This Is the Correct Answer
Option D is correct because the deed conveys a defined airspace interest, which is the specified space above the parcel. Air lots are typically described by identifying the ground parcel and stating the vertical limits of the airspace above it. The interest remains subject to the deed's terms, zoning and permit requirements.
Why the Other Options Are Wrong
Option A: The right to occupy the entire ground surface
Option A, the right to occupy the entire ground surface, describes surface rights. The deed conveys space above the parcel, not occupancy of the ground surface.
Option B: The mineral estate beneath the parcel
Option B, the mineral estate beneath the parcel, is a subsurface interest. The deed conveys airspace above the parcel, the opposite direction from minerals below.
Option C: A driveway-crossing easement at ground level
Option C, a driveway-crossing easement at ground level, is a nonpossessory right to pass over the surface. The deed conveys a defined three-dimensional airspace, not a ground-level access right.
Above, On, Below
Air rights are above, surface rights are on, and mineral rights are below. Match the direction in the deed to the interest.
How to use: Use this to sort out which layer of property rights a question describes.
Exam Tip
Identify the interest from what the instrument actually describes. Do not assume every transaction labeled air rights is the same type of interest.
Common Mistakes to Avoid
- -Confusing a conveyed airspace interest with transferable zoning development capacity
- -Treating an easement as a possessory airspace interest
- -Assuming air rights are free of zoning and permit limits
Concept Deep Dive
Analysis
This question tests identification of the property interest actually conveyed by an instrument. The deed expressly conveys a defined three-dimensional airspace above the parcel. The appraiser identifies the specific right described rather than confusing it with surface rights, subsurface rights or an easement.
Background Knowledge
Real property rights can be divided horizontally into surface, subsurface and air rights, each of which can be separately conveyed. Air rights may be conveyed as defined air lots with vertical boundaries. Transferable development rights under zoning may be a different interest, so the appraiser reads the actual instrument.
Real-World Application
In a dense downtown, a developer buys a defined airspace above a neighboring low-rise building to cantilever part of a new tower. The appraiser reviews the deed's vertical limits and any restrictions before valuing the airspace interest.
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