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How much is mine? From the soil to the sky

When you purchase property you are entitled to the airspace above and to the soil below, or to put it in latin as lawyers are want to do, the legal maxim of ‘Cuius est solum, eius est usque ad coelum et ad inferos (whoever's is the soil, it is theirs all the way to Heaven and all the way to Hell).

Of course, with all of these legal maximus there are obvious caveats (exclusions) to the rule, for instance, to be actionable at law any unwelcome access to or across the airspace above your home must cause some type of real interference such as the loss of the proper use and enjoyment of the land. As such it has been found that aircraft crossing through the airspace above a home is not an actionable interference, whilst a crane boom passing over a home is an actionable interference (Janney v Steller Works Pty Ltd [2017] VSC 363, (2017) 53 VR 677).

In terms to your right to the soil underneath your property, it is important to note that any minerals that are found on or under your property, such as gold, silver and coal, belong to ‘the Crown’ (or the Victorian Government) pursuant to section 9 of the Mineral Resource (Sustainable Development) Act 1990 (Vic). Any rights you have otherwise to the soil under your property is generally limited to a depth of 15 meters below the surface.

Obviously if you live in a multistorey apartment, depending on the plan of subdivision, your property and attached rights only extend to the middle of your external walls.

Have further questions?

If you have any questions regarding your rights in respect of your property boundaries, either the external boundaries and fence lines or above and below, contact the team at Mal Ryan and Glen.

This article is general in nature. It does not constitute legal advice and should not be taken as such.


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