Can I Sell Land That's Under an Airport Approach Path or Has an Avigation Easement?
Key Takeaways
- A federal airspace filing under 14 CFR Part 77 is a notice and study process, not a zoning law. Part 77 requires notice to the FAA (commonly FAA Form 7460-1) when construction would exceed certain height or slope thresholds under § 77.9, and the FAA issues a "Determination of No Hazard" or "Determination of Hazard to Air Navigation" under § 77.31 — but nothing in Part 77 itself grants or denies a building permit, and it does not restrict your ability to sell vacant land.
- What actually caps height and use is local airport-overlay zoning and any recorded avigation easement — two different things. Most of our operating states have a state enabling act authorizing local airport-hazard zoning (confirmed for Alabama, Mississippi, Michigan, North Carolina, Oklahoma, Pennsylvania, South Carolina, and Tennessee); an avigation easement is a separate, privately granted interest that's recorded in the deed records and runs with the land regardless of who owns it now.
- Overflight low enough to destroy a property's present use can be a constitutional taking, and it's the local airport operator who's on the hook. The U.S. Supreme Court held in United States v. Causby (1946) that low, frequent flights over private land can amount to a taking requiring compensation, and in Griggs v. Allegheny County (1962) held that the airport's owner/operator — not the federal government — bears that liability, which is exactly why airport sponsors buy avigation easements up front, often decades before a current owner ever sees the deed.
Can I Sell Land That's Under an Airport Approach Path or Has an Avigation Easement?
Yes. Land under an airport approach surface, or burdened by a recorded avigation easement, is still sellable — what changes is what a buyer can build, how a builder-buyer finances it, and whether you know the restriction is there at all. Two completely different things get lumped together under "airport restrictions": a federal notice and airspace-study process under 14 CFR Part 77 that does not by itself zone your land, and local airport-hazard zoning plus a recorded avigation easement, which are the things that actually cap height, restrict use, and can waive your right to sue over noise. Confusing the two is the single most common mistake owners make about this situation.
If you're not sure whether your restriction is federal, local, or a private easement, this guide walks through how to tell the difference, how to check your specific parcel, and what it realistically means if you want to sell. For general zoning questions unrelated to airports, see our guide on how land zoning works; if your land carries a surface easement for a pipeline, power line, or utility corridor rather than an airspace restriction, see our guide on selling land with a pipeline or utility easement — an avigation easement is the airspace version of that same idea, which is exactly why most owners never think to look for it. For more situations like this, see the Jerez Land blog.
What Triggers an FAA Filing Under 14 CFR Part 77, and What Does It Actually Mean?
An FAA notice filing is triggered by height and proximity thresholds written into 14 CFR § 77.9 — not by owning land near an airport in general. Notice is required for any construction or alteration more than 200 feet above ground level at its site, or for anything that would penetrate one of the "imaginary surfaces" that slope upward and outward from a runway: a 100-to-1 slope extending 20,000 feet from the nearest runway at airports with a longest runway over 3,200 feet, a 50-to-1 slope extending 10,000 feet at airports with a longest runway of 3,200 feet or less, or a 25-to-1 slope extending 5,000 feet from a heliport landing area. Roads, highways, and railroads near an airport get an automatic height allowance added for traffic (17 feet for an interstate, 15 feet for a public road, 10 feet for a private road, 23 feet for a railroad) before the same standards apply. When a proposed structure exceeds these thresholds, the sponsor files FAA Form 7460-1, Notice of Proposed Construction or Alteration, which starts an FAA aeronautical study under § 77.9 and Subpart D of Part 77.
The "imaginary surfaces" referenced above are formally defined in § 77.19 for civil airports, and they're worth understanding because they're what local airport-overlay zoning ordinances typically borrow their own height limits from:
- Primary surface — a surface centered on the runway itself, 250 to 1,000 feet wide depending on runway type and approach precision.
- Approach surface — extends outward and upward from each end of the primary surface, widening from the primary surface's width out to as much as 16,000 feet wide for a precision-instrument runway.
- Horizontal surface — a flat plane 150 feet above the airport's established elevation, with a radius of 5,000 to 10,000 feet depending on runway type.
- Conical surface — slopes upward and outward from the edge of the horizontal surface at a 20-to-1 slope for 4,000 feet.
- Transitional surface — connects the primary and approach surfaces to the horizontal surface at a 7-to-1 slope, at right angles to the runway centerline.
A parcel doesn't need a tower or a subdivision proposal on it to sit under one of these surfaces — vacant land sits under them by geography alone, the same way it sits in a flood zone by elevation alone. What differs is that these surfaces, by themselves, don't stop you from doing anything with vacant land; they only become relevant the moment someone proposes to build something tall enough to reach them.
Does an FAA "Determination of Hazard" Stop Me From Building or Selling?
No — not directly, and this is the point most owners and even some agents get wrong. Under § 77.1, Part 77's stated purpose is to establish notice requirements, obstruction standards, and an aeronautical-study and petition process; it says nothing about land use authority, building permits, or zoning. Under § 77.31, the FAA's output after that study is a "Determination of No Hazard to Air Navigation" (issued whether or not a structure exceeds an obstruction standard, as long as it wouldn't have a substantial aeronautical impact) or a "Determination of Hazard to Air Navigation" (issued when the study concludes the structure would exceed a standard and have a substantial aeronautical impact). Neither determination is a permit, a permit denial, or a zoning ruling — it's an aeronautical opinion about whether the structure endangers safe flight, filed for the record and used by pilots, chart-makers, and airports.
That doesn't make a hazard determination meaningless. It carries real practical weight — a lender financing new construction, a title company, or a buyer's own risk tolerance can all treat a Determination of Hazard as a reason to walk away or demand changes, and the FAA can recommend marking and lighting, or in extreme cases work with the airport to influence whether an instrument approach procedure can be published or maintained. But the legal authority to actually deny a building permit, cap a structure's height, or restrict what gets built on a parcel belongs to local government under its own zoning ordinance — not to the FAA under Part 77. If your local government has no airport-hazard zoning ordinance in place, an FAA hazard determination by itself typically doesn't stop construction; it just means nobody involved has much cover if something goes wrong. Selling vacant land is even further removed from this process — Part 77's notice trigger is about proposed construction, and simply transferring title to raw acreage isn't a "construction or alteration" that requires any FAA filing at all.
What Is a Recorded Avigation Easement, and Why Might I Not Know I Have One?
An avigation easement is a real property interest — typically acquired by an airport authority, a municipality, or a county — that grants the right to fly aircraft over a parcel at low altitude, generate the noise and vibration that comes with it, and often keep the parcel free of structures, trees, or other objects above a stated height. In exchange, the easement commonly requires the landowner to waive future nuisance or trespass claims over normal flight operations, as long as the airport stays within what the easement actually permits. Like any other recorded easement, it's filed in the county deed records and runs with the land — meaning it binds you as the current owner even if a prior owner, or an owner from two or three transactions back, is the one who actually signed it.
That's exactly why owners are often surprised to find one. Airport authorities frequently acquire avigation easements as a condition of a runway extension, a new approach procedure, or federal funding: airports that accept FAA Airport Improvement Program grants agree to a set of federal obligations known as Grant Assurances, and Assurance 21 (Compatible Land Use) specifically commits the airport sponsor to take reasonable action — including zoning and, where necessary, acquiring property interests like avigation easements — to keep nearby land use compatible with airport operations. Those acquisitions can happen decades before a current owner ever buys the land, get recorded once, and then simply sit in the chain of title, unmentioned in casual conversation about "the property," until a title search or survey turns it up. If you don't already know whether your parcel carries one, the only reliable way to find out is to pull your own title work or ask your county recorder for a deed and easement search on the parcel — don't assume the absence of a fence, marker, or personal memory means the absence of an easement.
How Is This Different From Local Airport Zoning, and Which One Actually Limits My Land?
Local airport-hazard zoning and a recorded avigation easement are the two things that actually restrict a parcel, and they work differently: zoning is a public regulation that applies to a whole overlay district and can change if the ordinance changes, while an easement is a private (though often government-held) property interest tied to your specific parcel that generally survives a zoning change and has to be released or extinguished on its own. Many local governments near airports adopt airport-hazard zoning ordinances under a state enabling act — these typically divide the surrounding land into height and use zones modeled on the same imaginary surfaces defined in 14 CFR § 77.19, and require a local permit before building above the applicable height, separate from and in addition to any federal Part 77 notice.
| 14 CFR Part 77 (Federal) | Local Airport-Hazard Zoning | Recorded Avigation Easement | |
|---|---|---|---|
| What it is | A federal notice and aeronautical-study process | A local ordinance, usually adopted under a state enabling act | A private (often government-held) property interest |
| Who imposes it | FAA, per 14 CFR §§ 77.9, 77.19, 77.31 | City, county, or airport-zoning authority | Airport authority, municipality, or county that acquired it |
| What it actually restricts | Nothing directly — it's a notice trigger and an aeronautical opinion, not a building prohibition | Structure and tree height, and sometimes land use, within the zoned overlay area | Height/obstruction limits on your specific parcel, plus your right to sue over ordinary flight noise |
| How you check | FAA's aeronautical study record for a filed Form 7460-1, or ask whether a proposed structure would exceed § 77.9 thresholds | Your local zoning map and ordinance, or the airport-zoning authority (if one exists) | A title search or deed/easement search at the county recorder |
Which of Our States Have a State Enabling Act for Airport-Hazard Zoning?
Eight of our nine operating states have a confirmed state statute authorizing local airport-hazard zoning, each administered locally under its own ordinance:
| State | Enabling Statute (Verified) |
|---|---|
| Alabama | Code of Alabama, Title 4, Chapter 6 (Airport Zoning) |
| Georgia | Not independently verified — Georgia's Title 6 (Aviation) chapters cover airport acquisition, operation, and local government powers, but no dedicated airport-hazard-zoning enabling act comparable to the other eight states surfaced in this research; the closest provision found, O.C.G.A. § 36-66-6, only addresses zoning near military installations specifically |
| Mississippi | Mississippi Code, Title 61, Chapter 7 (Airport Zoning) |
| Michigan | Michigan Compiled Laws, Act 23 of 1950, §§ 259.431–259.465 (Airport Zoning Act) |
| North Carolina | N.C. General Statutes, Chapter 63, Article 4 |
| Oklahoma | Oklahoma Statutes, Title 3, § 3-103 (and § 3-102.1, tying local permits to Part 77 obstruction standards) |
| Pennsylvania | 74 Pa. Consolidated Statutes, § 5912 (Airport Zoning Act) |
| South Carolina | S.C. Code of Laws, Title 55, Chapter 9 (South Carolina Airports Act) |
| Tennessee | Tennessee Code Annotated, Title 42, Chapter 6 (Airport Zoning) |
If you own land near an airport in Georgia, that gap doesn't mean nothing restricts your land — it means any height limit is more likely to come from the airport's own recorded easements or from your locality's general zoning power rather than a dedicated statewide airport-hazard-zoning framework, so a direct check of your county's zoning map and your own deed records matters even more there.
Can Overflight Alone Force a Taking, and Is That Why These Easements Exist?
Yes — that's precisely the legal backdrop that makes avigation easements common in the first place. In United States v. Causby (1946), the U.S. Supreme Court held that low-altitude military flights passing as little as 83 feet above a family's chicken farm, and repeatedly at that, imposed a "servitude" on the land and destroyed its usefulness for its existing purpose — enough to require just compensation as a taking under the Fifth Amendment, even without the government touching the surface at all. Sixteen years later, in Griggs v. Allegheny County (1962), the Court addressed who has to pay for that kind of taking when it results from a commercial airport's own runway placement, and held it's the airport's owner and operator — the local promoter who chose where to put the runway and which direction planes would fly — not the federal government, even though the FAA (then the CAA) approved the flight paths.
That liability exposure is exactly why airport sponsors don't wait to get sued. Rather than risk a future Causby-style inverse-condemnation claim from every property under a new or extended approach, an airport authority will often acquire avigation easements from affected landowners up front — sometimes as a condition of the very runway project or federal grant that created the overflight in the first place, under the Compatible Land Use obligation in FAA Grant Assurance 21. The easement converts a future lawsuit into a one-time, negotiated (or condemned) property acquisition, recorded once and then carried forward in the chain of title indefinitely.
What Does This Actually Mean for Me as a Seller?
For most vacant-land owners, the practical effect is narrower than the paperwork makes it sound: a height cap and overflight noise mainly affect what a builder-buyer can construct and how appealing the land is for a future home site, while uses that don't put a structure in the air — agriculture, timber, recreation, hunting land, or a ground-mounted solar array — are usually unaffected by either Part 77 or a typical avigation easement. If your buyer pool skews toward someone planning to build immediately, expect more questions and possibly a longer sale process while they confirm exactly what the easement and any local zoning permit; if your buyer is thinking recreational, agricultural, or long-term hold, the airspace restriction may never come up in a way that changes their offer. Related situations worth checking if they overlap with yours: our guides on selling land after a partial eminent domain taking and selling land with an easement cover the broader compensation and easement mechanics that sit behind an avigation easement specifically.
The single most useful thing you can do before listing is get the facts straight rather than guess: pull your own title/deed history to check for a recorded avigation easement, check your county's zoning map for an airport overlay district, and — only if you or a buyer actually plan to build something tall — check whether it would trigger a Part 77 notice at all. Most vacant parcels near an airport never come close to those height thresholds.
Request a no-obligation cash offer and we'll factor your parcel's actual airport-related restrictions — federal notice status, local zoning, and any recorded easement — into a straightforward written number, without asking you to sort out FAA paperwork first. For more guides like this one, visit the Jerez Land blog.
Frequently Asked Questions
I just found out there's a recorded avigation easement on my land from 1978 — can I still sell it?
Yes. An avigation easement is a property interest that runs with the land, meaning it transfers automatically to whoever buys your parcel — it doesn't need to be renewed, re-signed, or released for a sale to happen. What it does is limit what a buyer can build and typically waives claims over ordinary flight noise; a buyer's attorney or title company will see it in the title search regardless, so disclosing it upfront (or having a direct buyer who already checks title as part of underwriting) avoids surprises late in a transaction.
I got a "Determination of Hazard" notice from the FAA for a structure I never built — does that mean I can't sell my land?
No. A Determination of Hazard under 14 CFR § 77.31 is an aeronautical study result about a specific proposed structure — it isn't a lien, a zoning designation, or a restriction on the underlying land, and it doesn't attach to the parcel the way a recorded easement does. If you never built the structure the notice was filed for, or you're not the one proposing new construction, the determination has no bearing on your ability to sell the vacant land as-is; a buyer with different building plans would need to file a new notice for whatever they actually intend to construct.
My land is under the airport's approach path but I only want to sell for hunting or farming use — does the easement even matter?
It matters less than it would for a residential buyer. An avigation easement and Part 77's height thresholds are both aimed at structures reaching up into protected airspace; a hunting lease, row crops, pasture, or standing timber don't come close to those height limits, so the practical restriction on non-structural agricultural or recreational use is typically minimal. It's still worth disclosing and confirming exactly what the easement covers, since some easements also restrict specific uses (like assemblies of people) beyond just height, not only structures.
What's the difference between an avigation easement and a regular utility or pipeline easement?
A pipeline or utility easement is a surface (or subsurface) easement — it grants a company the right to install, access, and maintain a physical line across or under your land, and you can usually see its route on a survey or plat. An avigation easement is an airspace easement — there's often nothing visible on the ground at all, no marked corridor, no buried line, which is exactly why owners rarely think to look for one. Both are recorded and both run with the land, but a pipeline easement restricts what you build on a strip of your parcel, while an avigation easement restricts how tall anything on the whole parcel (or a defined portion of it) can be, plus your right to complain about aircraft noise.
How do I find out if my parcel has a recorded avigation easement or is inside an airport height-hazard zone?
Two separate checks: for the easement, request a title search or ask your county recorder's office for a deed and easement history on your parcel's legal description — avigation easements are typically indexed the same way any other easement would be. For the zoning question, check your county or municipal zoning map for an airport overlay or height-hazard district, or contact the local planning department or airport-zoning authority directly if your state has one (confirmed for Alabama, Mississippi, Michigan, North Carolina, Oklahoma, Pennsylvania, South Carolina, and Tennessee).
Does 14 CFR Part 77 itself stop me from building or selling, or is that just a local zoning issue?
Part 77 itself doesn't stop either one. It requires notice to the FAA when a proposed structure exceeds specific height or slope thresholds under § 77.9, and it produces an aeronautical opinion — a "no hazard" or "hazard" determination under § 77.31 — but Part 77's own stated purpose, under § 77.1, is limited to notice requirements, obstruction standards, aeronautical studies, and a review process, with no zoning or permitting authority attached. The authority to actually deny a permit or cap a structure's height belongs to local government, through its own airport-hazard zoning ordinance if one exists — which is a separate legal layer from the federal notice process entirely.
Disclaimer: This article is for informational purposes only and does not constitute legal, financial, or professional advice. Laws and regulations vary by jurisdiction and change over time. Always consult a licensed real estate attorney or aviation law professional before making decisions about airport zoning, avigation easements, or property transactions. Jerez Land is not responsible for actions taken based on this information.