Ask LH: How Far Above And Below My Land Is Legally Mine?

Dear Lifehacker, I own my own property in Australia. I was wondering how much space directly above and below my land legally belongs to me? For example, do I own the land all the way down to the centre of the Earth, or does it become government/public property after a few feet? Likewise, does the airspace above my house technically belong to me? If so, how far up? Thank you, Moleman.

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Dear Moleman,

Usual caveat: we're not lawyers and the exact rules differ between states and territories. With that out of the way, here is an overview of property laws in Australia as we understand them.

In the 13th century, property law subscribed to the Latin principle 'cuius est solum, eius est usque ad coelum et ad infernos', which translates to: "whoever's is the soil, it is theirs all the way to Heaven and all the way to the depths below." This meant that property holders owned not just their plot of land, but 100% of the air and the earth in-between.

Surprisingly, the above maxim remains in practice as a traditional starting point for property law in the western world. Indeed, the legal definition of "land" continues to include earth and airspace in addition to the ground's actual surface.

This affords the landowner certain protections. For example, it is against the law to mine minerals from beneath a property without the permission of the owner; even if their land's surface wasn't disturbed.

Likewise, a neighbour cannot build a property extension or erect a wire that overhangs another person's land, regardless of how high up in the air it is. (A classic example of "airspace" rights -- and one that has caused many a neighbourhood dispute -- relates to tree branches encroaching onto another person's property. In most cases, the affected land owner is entitled to cut these branches down.)

Under Australian common law, the surface owner’s rights extend downwards sufficiently to permit the extraction of minerals, which includes anything capable of being mined. As explained in the legal guidebook Australian Land Law in Context:

In the absence of any express or implied limitation of rights, an owner of land, at common law is entitled to the subsoil, ‘cuius est solum, eius est usque ad coelum et ad infernos’, and to the minerals therein.

The laws that govern airspace are a bit trickier. Naturally, you can’t restrict commercial aircraft from flying over your house as the sky is considered to be a public highway. Furthermore, the court can force you to remove structures that are considered an encroachment into airspace.

Private aircraft, including drones, are considered to be trespassing when traversing the land near to the surface. With that said, there does remain some legal uncertainty when it comes to aircraft flying over land. From the Australian Land Law in Context guidebook:

As long as an aircraft traverses a property at a reasonable height, having regard to all the facts and circumstances, there will be no liability for trespass. On the other hand, as a legislative trade off, there is strict liability should the aircraft cause damage to personal property such as would occur if the aircraft crashed into the land or into a structure erected on the land.

In other words, while your land rights don't necessarily extend down to the Earth's core or up to the cosmos, they aren't non-existent either. Hope this helps!

Cheers Lifehacker

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Comments

    Interesting. How does coal seam gas play into this? Apparently that resource belongs to the crown, wouldn't that contradict the Australian common law quote?

    Edit: This was the link referring to CSG beloning to the crown: http://www.lockthegate.org.au/about_coal_seam_gas.

    Last edited 10/08/15 2:04 pm

      I think that's covered in the disclaimer: "in the absence of any express or implied limitation of rights" -- the same limitation applies to petroleum.

    Notwithstanding that there are R-Codes which applies to your land in Australia - which normally dictates your maximum building height.

    I think it also goes without saying (but I enjoy saying it) that if you take advantage of current laws to do something awe-inspiringly evil and/or innovative with your subterranean/airspace-rights, be prepared for the law to be swiftly changed to maintain the status quo and spoil your fun. :)

      it is something to know though if you plan on making your own underground fallout shelter/batcave/5starholeintheground

    I'm sure my old man (a farmer, ironically, on the Liverpool plains) used say you own a couple of inches below, or in the case of subterranean construction, what is viable. eg a few meters.
    Having said that the government can trump all of that and seize any land they want.

    There are also some special cases. In the ACT you don't technically own your land. Even when you buy your land it is still leased from the government for 99 years. I'm pretty sure it also has a proviso saying mineral rights etc are also the government's.

    I think you'll find that mining laws in Australia cover "expressed or implied limits". All minerals belong to the crown. You cannot mine on your own property without the appropriate permits. Mining rights can and are granted across free hold land. Mining companies have to buy or lease land at the surface of they want roads, buildings etc.

    Here's a fun one related to airspace:
    You can trim a tree which overhangs your property, but you can't scrump its fruit! :)

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