Aerial photography, weather tracking, search and rescues – these are just a few things drones are being used for as they slowly integrate into our daily lives. Drones for recreational use can be purchased for as little as $30, and in June 2019, Amazon announced that within a matter of months it will begin using drones to deliver packages in select cities across the United States. See here. As drones are becoming more financially accessible to individuals and as more companies begin investing in drones for their delivery services, community associations should turn their attention to the skies and consider the best way to manage the increase in both recreational and commercial drones.
Community associations can potentially benefit from the rise in drone use in areas such as bylaw violations, where associations and their property management companies can observe violations through aerial views of the community, and decreased vehicular traffic in their communities as deliveries over time move from large trucks to smaller drones. However, community associations also face potential liability risks from drones operating in their communities as drones can be used to take photographs of adults and children in the communities’ common areas, such as swimming pools, in their backyards, or through the windows of their units or homes.
Recreational and commercial drone usage is governed by the Small Unmanned Aircraft Rule, 14 CFR 107.1 et seq, created by the Federal Aviation Administration. States may also further regulate recreational and commercial drone usage. For example, in Michigan, drones are also governed by the Unmanned Aircraft Systems Act, MCL § 259.301, et seq. As the use of recreational and commercial drones increases, community associations may want to eliminate or further regulate the drones flying over their own skies. There are at least three areas of concern community associations should address when considering whether and to what extent they will permit recreational and commercial drone use in their communities: (1) privacy; (2) safety; and (3) nuisance.
Privacy
Drones can be equipped with cameras and microphones, permitting drone operators to capture photos, videos, and sounds. While a recreational drone operator may just want to get an aerial view of land, other recreational drone operators have used drones for more nefarious purposes, such as in North Dakota when a drone was caught flying around a man’s patio and windows at night, likely in an attempt to determine if it would be worth breaking into the man’s house. See here. These drone capabilities present numerous privacy concerns that may be addressed by federal and state regulations, such as Michigan’s Unmanned Aircraft Systems Act which prohibits drone use for purposes of harassment, that violates a restraining or court order, and that invades a person’s reasonable expectation of privacy. See MCL 259.322. Community associations that are considering allowing recreational and commercial drones in their community should include in their discussions 1) areas where drone usage will and will not be permissible in order to protect homeowners’ reasonable expectations of privacy, 2) processes for homeowners to report drones that are impermissibly viewing and recording private areas, and 3) processes for directors, officers, and property managers to address potential privacy violations.
Safety
Drones are machines operated by humans on the ground, which means they are naturally prone to human error. These mechanical and human errors result in obvious accidents, such as a drone hitting an individual in the head (see here), and more extreme incidents, such as a New Jersey man using a shotgun to shoot down a drone flying in his neighborhood. See here. Current federal regulations require recreational drone operators to keep the drone within their line of sight and prohibit flying over groups of people or under the influence of drugs and alcohol. See here. The Federal Aviation Administration also recently issued new regulations that will require recreational drone operators to pass an online aeronautical knowledge and safety test and to carry proof of test passage. See here. Community associations considering allowing recreational and commercial drones in their community should also discuss when and where drones can be operated in their communities in order to protect the safety of both homeowners and property.
Nuisance
While some drones can fit inside the palm of your hand, even small drones can substantially increase the noise pollution within a community. Some recreational drones can make an area up to 12 times louder than it is without a drone present (see here) – now add several recreational drones and commercial drones carrying heavy packages flying in a community at one time and you get an idea of just how loud even the most secluded community can become. Many community associations’ documents contain nuisance provisions, but community associations will also want to consider other ways to combat the noise of drones by regulating when and how many drones can operate in the community at any given time.
Ban or regulate?
As the use of recreational and commercial drones ever increases, community associations need to determine whether drones will be permitted in their community and, if so, how to regulate their use. Community associations that are reviewing their governing documents should take a proactive stance to addressing drones and implement their desired approach through proper document amendments. If a community association decides to permit drone use in its community, it will also want to determine whether the use will be broad, permitting everything from commercial to recreational use, or whether the use will be limited, such as only by the property management company or only for commercial deliveries.
If a community association decides to permit co-owners, guests, invitees, or or renters to operate drones, it should consider the following to address privacy, safety, and nuisance concerns that may arise from both recreational and commercial drone use:
- What areas of the community will drones be permitted to fly over that prevents interference with homeowners’ reasonable expectations of privacy, such as by peering into the windows of a unit or home or by hovering upon the limited common elements or other areas of the community limited to certain individuals’ use?
- What areas of the community will drones be permitted to fly over to decrease the potential for harm to individuals and damage to other homes, units, and infrastructure?
- When will drones be permitted to operate within the community to decrease the potential for harm and damage?
- What information, if any, will a drone operator be required to provide prior to operating a drone in the community? Current federal regulations require recreational drone operators to register their drone with the Federal Aviation Administration, mark the outside of the drone with a registration number, and carry proof of registration with them. See here. Community associations may want to require a copy of the proof of registration and proof of passage of the online aeronautical knowledge and safety test once it is launched.
- Who will be responsible if and when a drone hits an individual or damages a unit, home, or other infrastructure in the community? In addition to requiring drone operators to provide proof of registration, community associations may also want to require drone operators to provide proof of insurance and to agree to indemnify the community association in the event of an accident.
- Will there by any limits on when and how many recreational and commercial drones can be used in the community at any given time or on how heavy the drones can weigh (the more a drone weighs, the faster the propellers are required to spin, increasing the noise) to eliminate noise pollution?
Drones are coming to your community, whether your association is ready for them or not. Community associations should consider whether and to what extent they will allow recreational and commercial drones to operate in their community and should work with legal counsel who specialize in community association law to review your association’s governing documents and to advise on how best to eliminate or regulate recreational and commercial drone usage in your community.
Kayleigh B. Long is an attorney with Hirzel Law, PLC and focuses her practice in the areas of appellate law, community association law and civil litigation. Ms. Long obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Her law review note was selected for publication in the Indiana Law Review, and she recently had an article published in the Denver Law Review. She can be reached at (248) 478-1800 or at klong@hirzellaw.com.