The recent surge in construction activity in urban settings has accelerated the use of cranes in tight spaces. Frequently, large cranes find themselves moving over neighbor’s buildings. Unfortunately, there is little definitive law that tells us exactly what the obligations of the crane operators are as to the neighbor’s property and what “air rights” may be utilized by the neighbors to prohibit unwanted crane activity in their neighborhood.

Typically, American law states that the owner of property owns everything below the surface of the earth extending indefinitely into the air space above the surface. However, the U.S. Supreme Court has ruled that the flying of airplanes as low as 83 feet over the earth didn’t constitute a trespass on the landowner’s property. Therefore, the issue is presented as to whether cranes can safely operate more than 83 feet above a neighbor’s property without constituting a trespass on that property.

Other cases have tried to balance the neighboring property owner’s rights against the reasonable need of a contractor to temporarily utilize the air space for construction purposes. Courts have been reluctant to restrain cranes or scaffolding arguably within the air space of neighboring property when that space was temporarily necessary for construction and there did not appear to be much risk of potential damage. Nevertheless, there is little certainty in this area of law and the risk of an injunction slowing a construction project, and causing great harm, is significant.

Therefore, the safest approach is for the owner of the property under construction to secure a temporary air space easement or license agreement under which the neighboring property owner allows the owner/developer to use the air space above his or her property during the construction project. Or, owners and developers should consider a plan where the footprint of the crane would not violate the air space of neighboring property owners. Of course in certain tight urban settings that might be impossible.

In another alternative, owners and developers and the crane operators that are hired on their construction projects will simply take a risk that the use of their crane over the nominal “air space” of neighboring property owners could result in a trespass claim or an effort to secure an injunction against further operations with the crane on the site, potentially impacting adversely the construction of the project. Careful consideration of these issues should be considered on projects where a tight site gives the crane little room to move.