By Ashley Nichols, Cornerstone Law Firm, P.C.
According to the Federal Aviation Administration (FAA), in 2018, there were over one million registered consumer drones in the United States. If you are like me, you may not have known that if you have an unmanned aircraft system (UAS or drone), you are now required to register your drone with the FAA. The FAA estimates that the actual number of drones in the United States is closer to 1.5 million. Additionally, at the industry’s current pace for hobbyist drones, those numbers are expected to triple to over 3.5 million by 2021. Given those numbers, odds are good that you, or someone you know, owns and operates a drone.
The legal framework surrounding the drone industry is still developing. Many of the concerns are over privacy issues (flying over someone else’s property, catching a neighbor sunbathing in the buff, peeping in windows, etc.). Associations are starting to question how to address drone operations in their communities. One question is who owns the air where the drone is being flown? On paper, the concept of land is relatively simple – you pay money, and in return, you’re given unfettered access to a predetermined amount of land (but HA! Unfettered and HOA, as we know, don’t go hand in hand). But do you own the sky above? There is a Latin phrase that translated says, “whoever owns the soil, holds title all the way up to the heavens and down to the depths of hell.” However, today, you only really have the right to enough airspace to reasonably enjoy the land below that air. What does that mean? Well, that’s up for debate.
There is “navigable airspace” which is regulated by the FAA. “Navigable airspace” is “airspace at and above the minimum flight altitudes …, including airspace needed for safe takeoff and landing.” The minimum flight altitude while flying over congested areas is 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet; and in uncongested or sparsely populated areas, it is 500 feet above the surface.
As for regulation by the FAA, in addition to being registered, hobby drones are required to (a) fly below 400 feet and remain clear of surrounding obstacles; (b) remain well clear of and not interfere with manned aircraft operations; (c) not fly within 5 miles of an airport without the airport’s prior approval; (d) not fly near stadiums or people; (e) not operate drones weighing more than 55 pounds; and (f) always keep the drone in a line of sight. Drone operators who violate these regulations could be fined for endangering other people or aircrafts.
So, is it trespassing if you fly over your neighbor’s land? Unfortunately, as of now, the answer is not clear. A case that may have shed some light on the issue was dismissed by a federal judge for lack of jurisdiction. The following is some background: Boggs, the drone pilot, was flying his drone over property owned by Meridith. Meridith, alleging trespass and invasion of privacy, shot down the drone (he later began calling himself the “Drone Slayer”). Meridith was charged criminally, and those charges were dismissed by a Kentucky state court judge. The drone pilot, Boggs, later sued Meridith in federal court asking the court to make a legal determination as to whether his flight constituted trespassing. The suit was brought in federal court because Boggs’ lawyers argued that the drone was flying in airspace which was regulated by the FAA, and as such, the incident was subject to federal jurisdiction. The FAA was not a party to the suit and the judge, dismissing the case, stated that the state courts would be better suited to adjudicate the claim.
The best case law on the issue of whether a drone flying over private property is trespassing is an old case dating back to 1946. That year, the Supreme Court ruled in a case known as United States v. Causby that a farmer in North Carolina could assert property rights up to 83 feet in the air. In that case, the farmer was awarded damages for chickens that were killed when they flew into a wall due to the noise of a low flying plane (83 feet).
State legislatures across the country are debating if and how drone technology should be regulated, taking into account the benefits of their use, privacy concerns, and their potential economic impact. Forty-one states, including Colorado, have passed legislation addressing drones. However, Colorado’s legislation only addresses governmental use of drones.
What about the commercial side? The business applications of drone use are nearly limitless – from delivery of packages to your door to conducting roof inspections. Drones could be an excellent tool to help enforce violations within your community and provide efficiencies in doing so. Currently, commercial use of drones requires FAA approval. If your community is considering using drones for enforcement, make sure that your vendors are in compliance with federal laws and guidelines.
A March 2013 report from the Association for Unmanned Vehicle Systems International projects that by 2025 more than 100,000 jobs will be created with an economic impact of $82 billion. This is certainly a growing industry and associations should ensure that they are proactively taking steps to address concerns over the use and operation of drones, rather than reacting. At the same time, associations wanting to regulate drone use in their communities should do so with care. Until a court conclusively finds that some portion of the airspace above private property is owned by the property owner, associations regulating said airspace will be subject to potential litigation.
Remember that many times, drone use and operations really come down to neighbor to neighbor disputes. An association’s best bet is to avoid provisions in a policy that are overly restrictive. Make sure to contact your association’s attorney to discuss prior to implementation in your community.
Ashley Nichols is the principal and founder of Cornerstone Law Firm, P.C. She has been in the community association industry for eleven years, providing associations with debt recovery solutions for their communities. Cornerstone Law Firm represents Colorado communities in all areas of common interest community law. You may find out more at www.yourcornerstoneteam.com.