A commercial property can come with more than the land under it. Some deals include space above the ground, like room over an alley, a parking deck or a lower building next door. An ALTA title survey can show where that space sits and how it relates to the parcel below. It can’t prove who owns it. That proof comes from the recorded title documents, so buyers and developers need both before they count air rights as part of a property’s value.
Air Rights Can Extend a Commercial Property Beyond Its Ground Footprint
Air rights are the rights to use or control space above the ground surface. A landowner usually holds them along with the land. They can also be split off and sold, leased or kept back as a separate interest when a property changes hands.
Once that happens, a property’s legal limits no longer stop at its lot lines on the ground. One owner might hold the right to build over a neighbor’s lower roof. Another parcel might exist only above a street, a rail line or a garage. Condominium units are a familiar example. Their limits are often set by floor and ceiling heights as well as by walls.
This matters in the older, denser parts of Baltimore. Commercial lots there sit close together, and some buildings share walls, cross alleys or connect to their neighbors above street level. A flat map of the lot can miss part of what the buyer is getting or giving up.
What the ALTA Title Survey Can Depict About Air Rights
An ALTA/NSPS Land Title Survey can show the outline of an air rights parcel or easement on the map. When the recorded description gives heights, it can also show the upper and lower limits of that space. The surveyor plots what the records describe and ties it to measured features on the site.
On the drawing, that may include a plan view with the air parcel drawn over the ground parcel. Notes can list the elevations that set its top and bottom. They should also name the vertical datum, which is the fixed reference used to measure those heights. Where a plan can’t show the layers clearly, the surveyor may add a cross section or profile view.
The survey also shows buildings, overhangs, skywalks and other visible improvements in relation to those limits. Recorded easements from the title commitment get plotted when the wording allows it. If a document is too vague to locate, the surveyor typically notes that it affects the property but can’t be drawn. The current ALTA/NSPS standards, updated in 2026, set the minimum rules for this work, and the client can request added items.
Title Documents Fill Gaps the Survey Cannot Establish
The survey answers where. The title documents answer who owns the space and what limits apply. Only the recorded deeds, agreements and title commitment can settle whether the buyer actually gets the air rights shown on the map.
The records worth pulling include the deed that created or reserved the air rights and any agreements between neighboring owners. Easements for support, access or light and air belong on that list too. So do condominium declarations and airspace leases. In Maryland, deeds and many recorded agreements are kept in the land records of the circuit court clerk for each county and for Baltimore City. The title company searches those records when it prepares the commitment.
A surveyor can point out problems in the records. The recorded heights might not match the existing building, or two documents might describe the same space. The surveyor doesn’t decide which document wins, though. That’s a legal question for the attorney and the title company.
Air Rights Matter When Evaluating Commercial Development Potential
Air rights can change what a buyer is able to build. Control of the space above a site might allow added floors, a connector to a nearby building or a structure over a parking area. If an old agreement gave that space to someone else, the project could hit a ceiling before design even starts.
Developers often run an early massing study, a rough 3D sketch of how big a building could be. That sketch falls apart if part of the airspace was sold years ago or carries a recorded height limit. When the ALTA shows those limits on the same sheet as the lot lines, the design team starts from real numbers. Lenders care for a similar reason. They want to know the collateral includes the space the loan assumes.
Private air rights are only one layer. Baltimore City’s zoning code still controls height and building size, whoever holds the air rights. A buyer with clear air rights still needs city approval for new construction. The survey and title work show the private rights, and zoning review shows what the city will allow.
Questions to Resolve Before Relying on Air Rights
Before you pay for air rights or plan around them, confirm that the records and the survey tell the same story. These questions are a good place to start:
- Which recorded document created the air rights, and does the title commitment list it?
- Does the description give upper and lower elevations, and which datum do they use?
- Does the ALTA survey plot the air rights, or does it only mention them in a note?
- Do existing buildings, overhangs or connectors already occupy that space?
- Does anyone else hold rights for support, access or light and air in that space?
- Will the title company insure the air rights as part of the purchase?
Send the surveyor the title commitment and copies of any air rights documents before fieldwork begins. Ask the lender and title company early whether they expect the survey to show elevations or sections. Their requirements can vary from deal to deal, and it’s easier to add scope at the start than near closing.
