Developers Fight in Court Over Air Rights

     HOUSTON (CN) – The developer of a 15-story Houston office building sued to fend off litigation from a neighbor who claims that any movement of a crane above its property “will be deemed a trespass.”
     The developer, 1885 St. James Place Partners LP, sued Finger-FSC Yorktown on Monday in Harris County Court.
     Finger-FSC Yorktown is owned by the Finger Companies, an apartment complex developer with properties in Southern California, Houston, Galveston, Colorado, Chicago and Atlanta.
     St. James Place broke ground on the building in September 2014 and expects it will be ready for tenants by March 2016. It will comprise 165,146 square feet, with nine floors of office space perched on a six-floor parking garage.
     Finger-FSC is building an apartment complex next door.
     The properties are in a prime area for Houston real estate, near the Galleria shopping mall and bustling Westheimer Road.
     The lawsuit revolves around the concept of a property owner’s “aerial rights,” the airspace above a structure an owner can claim as its own.
     “To construct the office building requires the use of a crane that is approximately 24 stories high in order to perform the vertical construction required,” the complaint states.
     The part of the crane that lifts building materials – the jib – rotates 360 degrees from a fixed base – the tower.
     St. James Place says the jib is 213 feet long and its engineer determined that “78 feet of the jib could extend over and above defendant’s property” during construction.
     Finger-FSC warned that “any rotation of the jib over any portion of (its) property will be deemed a trespass and met with legal action.”
     St. James Place is adamant that the crane will not pose any risk, claiming there will be more than 100 feet clearance whenever the jib goes over Finger’s apartments.
     Citing Texas case law, St. James Place claims: “Aerial rights in property extend only to the altitude of the property owner’s existing and effective reasonable use of the land.”
     University of Houston law professor Kellen Zale said there have been few such cases nationwide.
     “Surprisingly, there’s not much precedent for this despite all the construction cranes in the United States,” Zale told Courthouse News.
     Zale said she found precedent in only two similar cases: one from New Jersey and one from another state.
     “Both of those say that there was no trespass in a similar type of situation. They didn’t think that the owner of the place where the crane was extending over really had any claim to air rights that it wasn’t actively trying to use itself,” Zale said.
     “They also focused on the fact that it was a temporary situation.”
     St. James Place seeks a declaration that it can move the crane over the apartment complex.
     It also sued Finger-FSC for trespass, claiming the apartment developer’s workers went onto its property without permission to hang siding on the apartment complex.
     St. James Place is represented by Lee Collins with BoyarMiller of Houston.
     The Finger Companies did not respond to a request for comment.

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