Donate Air Rights, Rooftop or Subsurface Rights

Donate Air Rights, Rooftop Space or Subsurface Rights

A city block is divided vertically as well as horizontally. The right to build above a building, the roof a carrier pays to sit equipment on, the tunnel easement beneath a street, the four-foot alley strip left over from a 1910 plat: each is an interest in real property, each is nearly impossible to list, and each can be donated.

Tell us about the right

Every property gets a look. Name, phone and email are the only required fields.

Unique Property Asset Donation Intake

What kind of interest is it?

Describe it in your own words

Where is it? City, state and ZIP

County or region

What share do you hold?

Does it produce income?

What documents do you have?

Rights above, rights below, and leftovers

Air rights are the right to occupy space above a parcel or an existing structure, and in dense cities they are bought and sold on their own. Many municipalities run transferable development rights programmes, where unused density from a landmark or a low-rise site can be moved to a receiving site. Whether a TDR certificate is an interest in land or a creature of the zoning code depends on the programme, and that distinction matters for a gift.

Below grade, subsurface rights cover tunnels, vaults, parking structures and utility corridors. At street level, the odd leftover parcel is its own category: alley strips, vacated right-of-way, the sliver between two buildings. They are unsellable in isolation and genuinely useful to exactly one neighbour.

Rooftop arrangements

A roof leased for telecom or solar is usually a lease of space rather than a separate estate. The gift then looks like the ground lease case: it is the building, with the lease attached, that transfers.

Why these come loose

Projects change. Density gets bought for a building that never gets built, a landmark owner sells some rights and keeps the rest, an assemblage falls apart and leaves one owner holding a fragment. Meanwhile the fragment is assessed, appears on a return and has to be explained to every lender and every heir.

Municipal programmes also have deadlines and receiving-site rules, so rights that were valuable in one cycle can be hard to place in the next. Owners who have stopped tracking the programme rules often prefer a clean transfer to another round of monitoring.

What to have in front of you

These three determine whether the right can be conveyed at all.

The instrument

The deed of air rights, the TDR certificate, the easement or the lease, with the recording reference.

The programme rules

For TDRs, the municipality and the section of code the certificate was issued under, including any expiry.

The zoning determination

Anything in writing from the planning department about what the right permits and where it can land.

Questions about air and subsurface rights

Is a TDR certificate real property? +

It depends entirely on the jurisdiction. Some programmes create a recordable interest in land; others create a transferable entitlement that sits outside the property system. We identify which before treating it as a real property gift, because the substantiation differs.

Who would buy air rights from a charity? +

The same buyers who buy them from anyone: a developer on an adjoining or receiving site. It is a narrow market and a slow one, which the appraisal reflects. It is not an empty one.

I own a three-foot strip along the back of my lot. Is that worth donating? +

Possibly, and the value sits with the neighbour it serves. Strips like this are what make a redevelopment or a driveway legal, and that is where the comparable sales come from.

My roof has a cell antenna under a long lease. Can I donate just the roof? +

Not as a separate estate in most cases. Usually the building carries the lease, and what transfers is the building. If you are trying to separate the income from the property, read the answer on easements and ground leases about partial interests first.

How is something like this appraised? +

By an appraiser experienced in the specific municipal market, working from recorded transfers of comparable rights. Above $5,000 the IRS wants a qualified appraisal and Form 8283 Section B, commissioned and paid for by you, which is what makes it qualified.

We do not provide tax or legal advice. See IRS Publication 526, Publication 561 and the Form 8283 instructions, and consult your own advisor.