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Understanding Homeowners’ Airspace Rights in Texas

by | Jun 5, 2024 | Blog |

When homeowners purchase real property, they not only own the land but also the airspace above it, with certain limitations. Ownership extends vertically from the ground to the sky above your land. While this notion was historically accurate under common law, modern regulations and legal interpretations have significantly modified these rights. Understanding the nuances of airspace rights is essential for Texas homeowners, especially given the increasing use of drones and the complexities of federal aviation regulations.

Federal Oversight of Airspace

The airspace above your property is largely governed by federal law. The Federal Aviation Administration (FAA) maintains exclusive sovereignty over navigable airspace, which includes any airspace above the minimum altitudes prescribed by federal regulations. These minimum altitudes are 500 feet above ground level for uncongested areas and 1,000 feet for congested areas. These rules ensure safe navigation and public right of travel through the skies.

Homeowner’s Limited Rights to Airspace

Despite federal oversight, homeowners retain some rights to the immediate reaches of the airspace above their land. Texas courts have affirmed that property owners have exclusive control of the airspace they can occupy or use in connection with their land. This principle was highlighted in the case of Bevers v. Gaylord Broadcasting Co., where the court recognized a landowner’s control over the immediate atmosphere surrounding their property.

Navigable Airspace as a Public Highway

In Texas, navigable airspace is considered a “public highway,” which further limits a homeowner’s control over it. The FAA’s definition of “congested” versus “uncongested” areas plays a critical role in determining minimum flight altitudes and the extent of public right to airspace. Over congested areas, aircraft must maintain a minimum altitude of 1,000 feet above the highest obstacle within a 2,000-foot horizontal radius. For uncongested areas, this minimum drops to 500 feet.

Trespass and Nuisance in Airspace

While the airspace above certain altitudes is public, flights over private land can still be legally contentious. If overflights are so low and frequent that they interfere directly and immediately with the landowner’s use and enjoyment of their property, it can constitute a compensable taking. This was evidenced in the case of Alewine v. City of Houston, where low-altitude flights rendered residential property uninhabitable, leading to a claim for inverse condemnation.

Drone Regulations in Texas

The rise of drones has introduced new complexities in airspace rights. Texas law, under the Texas Government Code Ann. §§ 423.002 and 423.003, restricts the use of drones for capturing images of private property or individuals without consent if the intent is to conduct surveillance. These provisions, however, have faced legal challenges for violating First Amendment rights due to being overbroad and underinclusive.

Drones are allowed to photograph public property without the same restrictions, but when it comes to private property, the regulations become stringent. Violations can lead to civil action or criminal charges, though these laws are still evolving under judicial scrutiny.

Historical and Modern Perspectives

Historically, property rights in airspace were guided by the maxim “cujus est solum ejus est usque ad coelum,” meaning the owner of the soil owns up to the heavens. This principle was moderated with the advent of air transportation. The landmark case, United States v. Causby, marked a turning point by determining that a landowner owns only as much of the airspace as they can reasonably use. The Causby case involved low-flying military aircraft causing damage to a farmer’s chickens, leading to a ruling that such overflights constituted a taking of property.

Practical Implications for Homeowners

For Texas homeowners, the practical implications of airspace rights mean that while you do not have absolute control over the skies above your property, you do retain rights to prevent unreasonable interference. If low-flying aircraft or drones interfere with your use and enjoyment of the land, you may have legal recourse under trespass or nuisance laws. Additionally, drone operators must be mindful of privacy laws to avoid legal complications.


Navigating airspace rights in Texas involves understanding the balance between federal regulations and property rights. While the FAA controls navigable airspace to ensure public safety and efficient air travel, homeowners retain some rights to the immediate airspace above their land. As technology and regulations evolve, staying informed about these changes is crucial for protecting your property rights and privacy.

For further guidance, homeowners should consult legal experts to understand their specific rights and any potential legal remedies available for airspace intrusions. We welcome you to contact us now so that we can connect you with a double-board-certified real estate attorney. Our number is 713-572-4900.



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