Crossing the Airspace Line

 OP INSTITUTIONAL 01

By Michael Kurzman

Like the swallows returning to Capistrano, the cranes have returned to Florida. Not whooping cranes, but tower cranes – those tall, long-jibbed metal monsters that swing over high rise construction projects and neighboring properties. After the great recession, the tower cranes have returned with a vengeance.

These giant cranes raise a few questions: what are the rights of the developer or general contractor to have the crane jibs swing over neighboring properties? Can the jibs legally swing over neighboring properties? Can the cranes swing cargo over neighboring property? If they do, is the neighboring property owner entitled to compensation? Can the neighboring property owner stop or enjoin the cranes from crossing their property or entering their airspace?

The short answer in Florida appears to be that a brief encroachment of unused airspace, so long as the encroachment does not cause any measurable harm to the land below, will not rise to the level of trespass. Moreover, the plaintiff will typically not be able to obtain an injunction because the necessary elements of irreparable harm and substantial likelihood of success on the merits cannot not be satisfied. Interestingly, there are no appellate decisions in Florida specifically addressing whether a crane jib is a trespass. However, Florida courts have looked at the issue of trespass into airspace by passing airplanes. In the Florida landmark case that relates to airspace invasions by airplanes, the court held that a “property owner was entitled to compensation when his property was taken or its beneficial use to such owner was destroyed.” In this case, the court found a trespass or inverse condemnation where the planes flew over the property at altitudes ranging from 100 to 150 feet and caused vibrations that produced structural damages to homes, spread exhaust fumes and caused objects to fall from tables and shelves. In a later case, even though the record indicated that plaintiffs were subjected to constant “noise, vibrations, odors, noxious fumes and other exhaust pollutants from the low flying jet aircrafts,” plaintiffs were denied relief because they failed to establish a “diminution in value to the property.”

Burdens of Proof To prevail on a claim of trespass from a crane jib encroachment, it appears a plaintiff would have to establish that the crane has resulted in their property being taken or its beneficial use of the property was destroyed. This is a tough burden to meet from a crane crossing your airspace.
Another approach would be to seek an injunction preventing the crane from crossing over their property. However, with this claim, the burden is even greater. To prevail on an injunction, the party moving for a temporary injunction must show that they will suffer irreparable harm for which no adequate remedy at law exists and that the moving party has a substantial likelihood of success on the merits. Clearly, there is an adequate remedy at law in the form of money damages and the substantial likelihood of prevailing on the merits does not exist. In fact, it is more likely they will not prevail based upon the current state of the law in Florida. Other jurisdictions outside Florida are consistent on this point. Courts outside Florida have stated that “a property owner owns only as much air space above his property as he can practicably use and to constitute an actionable trespass, an intrusion has to be such as to subtract from the owner’s use of the property.” There was a relatively recent case (2013) in Miami-Dade County involving this very issue. The non-jury trial spanned eight days over the course of seven months. The trial court heard from many witnesses (including experts on crane safety and operation) and issued a 34-page decision. The trial court noted that by law, a tower crane must be designed to sustain winds of 135 to 140 miles per hour and when not in use, the cranes must be allowed to rotate freely with the wind so that they will position themselves in a manner that will create the least wind resistance. This causes them to swing or vein over adjoining property at various times. In the end, the trial court concluded that the encroachment by the tower crane was temporary, as it will end when construction ends, and was not sustained, because the crane was always moving. In addition, the court found that the plaintiff did not meet its burden to establish that the minor encroachment has interfered with or diminished their ability to use, access and enjoy their property or business. The plaintiff appealed but unfortunately, the appeal court only affirmed the decision with out an opinion. Thus, without an appellate opinion, this decision does not afford much precedential value. Though the developer ultimately prevailed, it was not without a steep price. The developer incurred significant attorney’s fees, expert fees and court costs to defend the claim. Indeed, the less expensive, more prudent and neighborly path is to work out a temporary air right agreement with the neighboring property owners. These agreements typically include compensation to the adjoining property owner, allow for the temporary encroachment and provide for insurance and indemnification in the event of an accident. From the adjoining property owner’s perspective, these agreements provide them with compensation and security via insurance in the event of an accident. They can also limit the transporting of cargo across their property. From the developer’s perspective, these agreements keep the neighbors happy, keep the developers out of court and avoid the risk of the project being shut down, resulting in a win/win for all involved.

Michael Kurzman is a partner at the law firm of Weiss Serota Helfman Cole & Bierman. He is a Florida Bar, board certified attorney in construction law and has represented crane companies, developers and adjoining property owners on temporary air right agreements over the years. He can be reached at mkurzman@wsh-law.com.

 

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