Condominium Units Without Building Anything Airspace Units

posted by Jane Freeman January 16, 2015

Connecticut’s Common Interest Ownership Act (“CIOA”) allows for the creation of common interest communities, such as condominiums and planned communities, comprised solely of “airspace units.”

What are “airspace units”?  “Airspace units” are units having boundaries which are not limited to walls, ceilings and floors.  Instead, the units are filled with airspace and no buildings have to be constructed in order to create the units.  By way of example, an “airspace unit” may have its boundaries described as follows: the horizontal boundary of the unit is the surface of the land and the vertical boundary of the unit consists of vertical planes as shown on the survey and extending to the heavens.  The foregoing description could be used to describe an “airspace unit” which has no upper boundary and consists solely of the airspace extending from the surface of the land into the heavens.  Thus property descriptions for “airspace units” may take into account the third dimension.  An “airspace unit” created under CIOA may or may not have a building constructed inside the unit once the unit is created.

The Court’s holding that “airspace units” are authorized under CIOA has provided developers with a novel and flexible development tool.  Developers may file a Declaration to establish a common interest community comprised solely of “airspace units” without having completed, or even commenced, the construction of any buildings.  In addition, once “airspace units” are declared, developers may sell or lease these units, leaving it to their purchasers or lessees to construct the buildings and improvements inside the “airspace units.”  Further, because all space below the surface of the land is undivided and remains a common element, developers need not secure any municipal subdivision approvals before selling or leasing “airspace units.”  Common interest communities are a form of property ownership.  While municipalities have the authority to regulate the use of real property through their zoning powers, they have no power to regulate the ownership of real property.  Therefore, developers may establish, sell and lease “airspace units” without securing any subdivision approval in what can often be a time consuming, contentious and expensive process.

Connecticut is only one of two states which have adopted the Uniform Common Interest Ownership Act, the model for creating “airspace units.”  Connecticut developers are fortunate to have this development option within their toolboxes.

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