Pleasant Pastime or Privacy Peril? Piloting Drones in HOA Communities
Within the past decade or so, millions of Americans have purchased and piloted unmanned aircraft – better known as “drones.” Though initially only used by the military, drones are now enjoyed by amateur enthusiasts around the country. And new commercial applications seem to emerge every day. Indeed, an FAA license to operate drones in commercial settings is becoming a valuable professional asset for entrepreneurs and job seekers alike.
As with just about any new technology, though, there are bound to be downsides. With drones, these come primarily in the form of public safety, privacy, and nuisance concerns. Predictably, federal regulation has lagged behind the evolving uses and technological advances. Although some state governments have moved more quickly, they are somewhat limited due to the Federal Aviation Administration’s jurisdiction over aircraft. HOAs, too, are attempting to address the potential problems of an emerging technology that was unheard-of when most communities’ covenants were recorded.
For community associations, the challenge is to craft an unmanned-aircraft policy that balances the interests of amateur drone operators against the rights of their neighbors. On one hand, drones unquestionably offer many practical advantages, and piloting a drone can be a fun and rewarding hobby. On the other, homeowners have a right to a safe and nuisance-free community where they can enjoy their property and families without any unwarranted intrusions—whether by man or machine. It can be tricky to find that cozy middle ground, but doing so gets easier if you know a little more about the positives and negative aspects of drones.
Uses of Drones.
The vast majority of drone pilots are hobbyists. For many, just flying the aircraft is the fun part – not much different than a radio-controlled airplane. Amateur and professional photographers have discovered that the built-in cameras on most drones allow for scenic photographs or wildlife observation from points of view that are otherwise impossible. In the commercial realm, real estate agents have started using drones to market properties. A photograph or video taken by a drone from an overhead view can display a home within the context of the entire neighborhood and surrounding landscape. If it’s a nice neighborhood and a big, well-maintained yard, a drone-taken picture can be a real eye-catcher.
Farmers are using drones in crop-spraying, and, unsurprisingly, drones have proven useful to land surveyors in numerous commercial contexts. The Amazon company says it will begin using drones for package delivery in the near future. If the project proves successful, delivery of traditional mail via drone probably won’t be far behind.
Drones also offer some potentially useful applications for homeowners association. An association with wide-ranging common areas may find that drones allow for more efficient observation. In a community that has a large park with playground equipment, for instance, a board officer could verify whether all equipment is in good working order much more quickly using a drone than by walking the entire grounds carrying a ladder to review taller equipment.
Drones might also provide a more convenient and less physically invasive means of inspecting individual lots for covenant violations. A quick aerial inspection via drone could determine whether lawns are properly tended, improvements are being constructed in the approved manner, and structures’ exterior appearances remain compliant with community standards—all without actually setting foot on any homeowner’s property. Even more, a drone could facilitate ready observation of difficult-to-access areas like roofs and balconies without the need to go inside residents’ homes.
In communities with a neighborhood watch, drones can safely observe large areas without any need for a walk-through. Importantly, though, a drone operated by a civilian cannot be equipped with any sort of weapons system, so the security functions must be limited to observation.
Privacy, Safety, and Nuisance Concerns.
Drones inarguably offer a lot of benefits, but there are also some inevitable drawbacks. Like any aircraft, drones are prone to mechanical or human error. Even a relatively small drone can cause significant injury or property damage if the pilot loses control, or is flying recklessly, and the drone collides with a person, animal, or structure. Although drones are prohibited by law from carrying hazardous materials, a crash involving a drone unlawfully carrying a dangerous substance could spread contaminants over a wide area.
Perhaps of more practical concern to HOAs, hobbyists unfortunately don’t always limit their use of drones’ imaging capabilities to nature photography. More than a few homeowners have complained about small unmanned aircraft hovering at their windows or around the yard, and the operator can’t always be identified. In 2015, a Kentucky father took matters into his own hands, shooting down a drone he found observing his 16-year-old daughter sunbathing. He was arrested for his efforts but eventually acquitted by the court. Property owners would be well-advised not to count on that result in every jurisdiction.
Drones can also be loud, depending in part on the size and type. Most neighbors aren’t bothered by a little routine noise around the community—the trash truck, kids playing outside, the occasional car horn or dog bark kind of come with the territory. But a drone buzzing and humming through the neighborhood for extended periods can become a nuisance, particularly if it’s flying near your windows or scaring your pets.
Federal Drone Regulations.
Regulation of air travel and aircraft, including drones, generally falls under the purview of the Federal Aviation Administration (“FAA”). The FAA tries to stay on top of the near-constant advances in drone capabilities—adopting regulations specifically directed at amateur and commercial operation of drones by civilians. However, as noted by the Wall Street Journal, “Drone technology is developing so quickly—and morphing into commercial uses never before contemplated—that aviation regulators are having trouble keeping pace.” Andy Pasztor & Robert Wall, Drone Regulators Struggle to Keep Up with the Rapidly Growing Technology, Wall St. J. (July 10, 2016).
FAA regulations pertaining to drones are primarily found in the Small Unmanned Aircraft Rule, at 14 CFR 107 (a/k/a “Rule 107”). For the most part, civilian drone use falls into one of two categories: recreational and commercial. Most general safety rules apply to either use if a drone is operated under Rule 107.
Subject to a few limited exceptions, hobbyists cannot fly their drones within five miles of any controlled airspace. Controlled areas include, for example, the designated zones around airports and installations with emergency helicopter landing sites. If a community is located close enough to an airport, a hospital with a helipad, or some other controlled airspace, it may be unlawful to fly a drone absent a waiver. The FAA provides maps of controlled airspace on its website.
A drone operator qualifies as a “hobbyist” if his or her drone is under 55 pounds and solely used for recreational (i.e., non-commercial) purposes. “Commercial” use does not necessarily have to be business-related. A drone used by or on behalf of a non-profit organization can be “commercial” if the use has an institutional purpose other than just enjoyment. So, an HOA that uses drones to conduct compliance inspections is probably engaged in a commercial use.
Under FAA rules, hobbyist drone pilots must be at least thirteen years old and must register their drones with the FAA. Drones piloted by hobbyists cannot travel faster than 100 miles per hour or fly at over 400 feet. While in flight, the drone must be visible by the pilot or by an observer in direct communication with and visible to the pilot. And the drone cannot operate over any person or group not directly participating in the flight or under or unreasonably close to any covered structure. Recreational operation is also limited to daylight hours.
To operate a drone for a commercial purpose, a pilot must be at least sixteen years old and obtain a “remote pilot certificate” with a small UAS rating. The license requires passage of an FAA examination. The FAA is also developing a new online test for recreational drone pilots that will test basic aeronautical knowledge, but the test has not yet been implemented.
FAA drone rules are chiefly concerned with safe operation and are generally silent when it comes to the more pressing concern for most HOAs: privacy. Most states had already enacted privacy laws before drones became a concern—and a right to privacy exists under the Common Law—but the existing laws do not always contemplate the kinds of intrusions made possible by drones. And so, many states are considering, or have already enacted, legislation designed specifically to address the privacy issues raised by small unmanned aircraft and their sophisticated imaging capabilities.
State Drone Laws.
The National Council of State Legislatures reports that 45 of 50 state legislatures have considered laws governing the use of drones. Not all of those states have actually enacted legislation—and some only address the use of drones by government agencies—but the trend is clear. More states are likely to adopt drone laws as the privacy implications become more widely known.
State laws specifically addressing drone use by the general public are typically geared toward preventing intrusions on the privacy rights of other people. Michigan’s Unmanned Aircraft Systems Act, for example, prohibits the use of a drone in any way that invades another person’s reasonable expectation of privacy. See MCL 259.322. Florida’s statute works similarly, forbidding drone operators from creating images of other persons or privately-owned real property in a manner that infringes on privacy rights. The Florida law specifies that an image taken of a non-consenting person on his or her own property while in a location not ordinarily observable to the public violates the statute. Fla. Stat. § 934.50. Subject to a few exceptions, Florida also forbids law enforcement from using drones to gather evidence without a warrant.
Pennsylvania bans certain “unlawful use of unmanned aircraft,” including surveilling another person in a private space and operating a drone in a manner that puts someone else in fear of injury. 18 Pa. Con. Stat. §3505. Along the same lines, Texas makes it unlawful to use a drone to capture images of an individual on private property without his or her consent. Tex. Gov. Code §423.003. Texas also disallows the use of drones to scout wildlife for the purpose of hunting, as does Colorado. Tex. Admin. Code §65.152; Code of Co. Regs. §406-0, #004.
While not all states have specifically addressed drones by statute, nearly every state has general privacy laws, which have been applied to drones. “Peeping Tom laws,” as they are popularly known, are usually criminal in nature, though they sometimes also allow for civil liability. Typically, the laws provide criminal penalties for entering onto someone else’s private property without consent for the purpose of observing a person in a location where he or she has a reasonable expectation of privacy. See, e.g., Code of Va., § 18.2 – 130; Cal. Penal Code §647.
In 2017, a Utah court convicted a defendant of voyeurism after he used a drone to record multiple hours of video of his neighbors while they were inside their homes and unaware that they were being recorded. Scharf, Rebecca L., Drone Invasion: Unmanned Aerial Vehicles and the Right to Privacy, Indiana Law Journal (2019). Likewise, a Wisconsin court convicted a defendant caught using a drone to record video footage through the windows of multiple residences and to surreptitiously observe other persons on private property. Id.
A few municipalities and counties have passed ordinances establishing criminal citations for improper use of drones—particularly with regard to invasion of others’ privacy. However, several states have expressly preempted local drone rules, preferring instead to leave regulation to the state legislature and the FAA. See, e.g., A.R.S. §13-3729; O.C.G.A. §6-1-4(b).
Member and Association Liability for Improper Use of Drones.
As noted above, if an HOA uses a drone in performing its institutional duties, the operator probably needs an FAA-issued certificate for commercial use. With or without a license, the use of drones in a manner that violates FAA regulations can lead to fines for an association (or any other operator). Moreover, there are several legal theories under which improper use of a drone could potentially lead to civil liability—whether the device is used by an HOA, by a homeowner, or by a visitor to the community. With that in mind, an association that allows drones or uses them itself should seriously consider obtaining an insurance policy that covers any resulting liability, including premises liability arising from drone use within common areas.
Civil liability is most likely to arise under common law causes of action like negligence, invasion of privacy, and trespass. Individual state standards vary considerably, and a few states have adopted laws expressly applying common law trespass claims to drones. Essentially every jurisdiction, though, recognizes these theories of liability to a greater or lesser degree and in one form or another.
Negligence is the theory under which most claims for property damage or bodily injury are asserted. Liability arises when a defendant fails to meet the standard of care expected of a reasonable person under the circumstances, and, as a result of the failure, the plaintiff is injured. See, e.g., Pearson v. Norman, 106 P.2d 361 (Colo. 1940); Terry v. Linscott Hotel Corp., 126 Ariz. 548, 617 P.2d 56 (App. 1980). Damages awards in negligence cases are intended to compensate the plaintiff for the injuries and return the plaintiff to his or her pre-injury status (though, of course, that often requires estimating the financial “value” of physical injuries and emotional anguish). U.S. Fid. & Guar. Co. v. Davis, 3 Ariz. App. 259, 413 P.2d 590 (1966). If a defendant’s conduct showed a complete disregard of the rights and safety of others, a negligence claim can also include an award of punitive damages. Huffinan v. Love, 245 Va. 311, 314, 427 S.E.2d 357, 359-60, (1993).
The most likely scenario under which a negligence claim would arise against an association relating to drone use would be if someone operating a drone for the HOA loses control of the aircraft in flight, and it crashes into a person or someone’s property. If, for instance, a board member is using a drone to conduct inspections and the drone malfunctions or the operator makes a mistake—crashing through a homeowner’s window in the process—the association will be liable for the cost of repairing the window. An association could also potentially incur liability under a premises liability theory if it permits homeowners to pilot drones in common areas and a homeowner flying a drone with the HOA’s consent negligently causes injuries to another person.
Invasion of Privacy.
The standard for common law invasion of privacy claims is similar to the criminal standard discussed above. A few states’ criminal drone statutes also provide for civil liability. See, e.g., Id. Code § 21-213. In a nutshell, a defendant is liable for invasion of privacy if he or she intentionally intrudes upon a plaintiff’s seclusion at a time and place in which the plaintiff has a “reasonable expectation of privacy.” Restatement (Second) of Torts, § 652B. Whether a plaintiff has a reasonable expectation of privacy in a given context is largely dependent on the time and place and any relationship between the parties. Wolfson v. Lewis, 924 F. Supp. 1413, 1417–18 (E.D. Pa. 1996).
States differ on the specifics, though a plaintiff intruded upon while in the comfort of his or her own home is almost always considered to have a reasonable expectation of privacy. That expectation is reduced when outside or in public, though an “overzealous” intrusion can still lead to liability. Nader v. Gen. Motors Corp., 255 N.E.2d 765, 771 (N.Y. 1970). A plaintiff on his or her own property but who is visible from a location that is open to the public (or to the specific defendant) usually doesn’t have an expectation of privacy. Munson v. Milwaukee Board of School Directors, 969 F.2d 266, 271 (7th Cir. 1992).
Homeowners caught using drones to spy on their neighbors while their neighbors are inside their own homes are likely to be found liable for invasion of privacy. An association that uses a drone to inspect common elements or the exteriors of homes for covenant violations is much less likely to be liable, especially if the association has a right under the declaration to enter on the property for inspections.
A more interesting case would be a board member using a drone to inspect for compliance on behalf of the HOA but who, while in the process, improperly records residents inside their homes. In that scenario, the board member could be personally liable because most declarations and state HOA laws exclude “intentional torts” (such as invasion of privacy) from the general limited liability afforded to board members. And there’s a good chance the association would also be liable under a theory of “vicarious liability,” under which a principal is liable for the torts of its agent while the agent is working for the principal.
Critically, invasion of privacy claims are highly dependent on the details of the individual case, and liability standards vary considerably from state to state. An association using a drone for a legitimate, non-invasive purpose is unlikely to incur any liability but should take care to ensure that the use of the HOA’s drone does not go beyond that.
Civil trespass is a tort that occurs when a defendant enters onto the plaintiff’s property without permission and either won’t leave or comes back after being told to leave. Most states have enacted statutes codifying the common law cause of action, and several have recently amended their civil trespass statutes to specifically address drones. California, Nevada, and Oregon, for instance, have all passed laws providing for civil liability of a defendant who flies a drone over a plaintiff’s property without consent. Cal. Civ. Code §1708.83; Nev. Stat. § 493.103; Or. Rev. Stat. § 837.380. Notably, though, a civil trespass action won’t attach to just any flight; the altitude is a factor.
Traditionally, a landowner was considered to hold all property rights starting at the surface and extending up to the sky—and descending underground as far as he or she could dig. In more modern jurisprudence, courts have held that air rights derived from land ownership only go up as high as is reasonably necessary to ensure full use and enjoyment of the property (otherwise, every commercial flight would be a potential trespass on every private lot it flies over). See, e.g., U.S. v. Causby, 328 U.S. 256 (1946).
Under Nevada’s law, a drone flight is a civil trespass if it occurs below 250 feet. Under California’s similar statute, the minimum altitude below which a pilot needs the landowner’s consent is 350 feet. Considering the FAA’s 400-foot maximum, amateur drone pilots who want to pass over their neighbors’ land without permission have a pretty small window to work with. The Oregon law doesn’t include a specific altitude, but it does require that the homeowner have told the drone pilot not to fly over the property at least once before.
It’s worth noting that civil trespass claims generally require a showing of intent (i.e., the defendant intended to enter on the property—it wasn’t an accident) and an actual physical presence on the property. So, a drone that buzzes around a property taking pictures won’t support a civil trespass action (absent a statute that says otherwise). That scenario might still allow for an invasion of privacy claim if the drone is videoing a person. However, taking pictures or videos of real estate without consent, even close-ups, is usually insufficient for an invasion of privacy claim. Boring v. Google Inc., 362 F. App’x 273, 276 (3d Cir. 2010).
In most cases, a legal right to enter onto a property is a defense to a civil trespass action. So, an association granted an easement by the community declaration or by statute—whether to access common elements, check for violations, or inspect improvements—won’t be liable for civil trespass. HOA easements often come with prerequisites, such as giving the homeowner reasonable notice and limiting entries to convenient times. An association that wants to avoid liability should be sure to abide by all the required protocol.
Homeowners and associations alike need to keep in mind that, in confrontations involving drones, liability can potentially run both ways. According to USA Today, a California resident who blasted a drone out of the sky under the mistaken impression that it was a “CIA surveillance device” was ordered to pay the drone pilot restitution of almost $1,000 to cover the cost of replacing the obliterated aircraft.
HOA Restrictions on Drone Use.
The FAA reports that there are already over one million registered, non-commercial drones in the United States and as many as half a million more “off the books.” With so many drones throughout the country, and with the potential for conflict that they raise, many HOAs have recognized the need for a coherent and consistent drone policy. Drones, though, weren’t around when most communities’ declarations were drafted. As a result, existing associations that want to address drone use must either amend their declarations or work within the existing framework.
HOA covenants usually include some general provisions that a board can use to develop a drone policy. For instance, community declarations typically include a covenant to only use the property in ways that comply with all applicable laws. An HOA board could therefore define any violation of FAA regulations as a covenant breach. A policy along these lines would allow the HOA to take enforcement action against a member who operates a drone too close to a structure, over other people, or in other ways that violate FAA rules. In states with drone statutes, an association could use a violation of state law as grounds for an enforcement action.
Community declarations often also include prohibitions on dangerous activities and nuisances—and require residents to respect their neighbors’ right to quiet enjoyment of their properties. Depending on state law and the precise wording of the community’s declaration and bylaws, a board might be able to use these provisions as authority to adopt rules more specifically applicable to drones. On this basis, a board could potentially restrict or prohibit operation of drones in some or all common areas, for instance.
HOAs generally have greater authority to restrict activities in common areas than in individual members’ private property. To restrict a homeowner’s lawful operation of a drone on his or her own property, a board probably needs to rely on a covenant. For most existing HOAs, this means amending the declaration with the approval of a super-majority of homeowners.
Because drones are such a new phenomenon, courts have not yet had much opportunity to examine HOA restrictions on their use. In general, though, courts will enforce validly enacted restrictions on private property “unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy.” Nahrstedt v. Lakeside Village Condo. Ass’n., 8 Cal. 4th 361, 386 (1994).
A community adopting restrictions on drone use might consider time and location restrictions. An HOA could limit drone flights to daylight hours and designated flight areas. Or, an HOA might prohibit drone flights over other members’ lots without consent, or use of drones in a manner that intrudes on other residents’ privacy, including to create images of other residents without their consent.
Another approach that is proving popular is for associations to require residents to submit an application and obtain board approval before operating a drone within common areas. The application can require that the pilot abide by all safety rules and agree to indemnify the association in the event of an accident. Some associations are also requiring that drone operators provide proof of insurance. This is particularly important if drones are flown in common areas, like in a community park, to help avoid premises liability claims against the association in the event of an accident.
The remedies available to homeowners whose rights are infringed by improper drone operation will vary depending upon the laws of the applicable state, the specific community’s covenants, and the nature of the improper use. If the conduct violates state criminal laws, the homeowner should report it to the local sheriff. Remember, courts in several states have already held that existing ‘Peeping Tom laws’ apply to invasions of privacy derived from drone use.
If the offensive drone operation violates community covenants or rules—including general nuisance or hazardous activities prohibitions—the homeowner might first politely raise the issue with the drone-operating neighbor, if feasible. If that is unsuccessful, the homeowner should bring the problem to the board’s attention and request that the board take action. It’s a good idea to keep copies of any written communications exchanged with the board and notes regarding any verbal exchanges. If the board will not take action, individual homeowners generally have standing to bring civil actions seeking enforcement of covenants. See, e.g., O.C.G.A. §44-3-223, Tex. Prop. Code § 202.004.
In addition, or alternatively, a civil action could include one or more of the above-described common law claims, if appropriate. In states with drone statutes providing for civil liability, such as the trespass laws discussed above, those laws could potentially provide additional grounds for civil relief.
Before taking any legal action, a homeowner should discuss the matter with a local attorney with experience in the state and local laws governing HOAs. An attorney will be able to provide advice as to what, if any, recourse is available and, if necessary, help in pursuing a suitable legal remedy.