MANAGE THE RISKS DRONES CREATE FOR COMMUNITY ASSOCIATIONS BUT DON’T IGNORE THEIR BENEFITS
When we’ve discussed drones in the past, we have focused mainly on how condominium associations can (and should) regulate their use to mitigate the safety and liability risks these small, unmanned aerial vehicles may create. But risks aren’t the whole story. Drone technology also has many potential benefits that community associations are beginning to recognize.
The most obvious benefits involve maintenance. Drones equipped with high-definition or thermal imaging cameras can inspect building exteriors quickly, cost-effectively and safely, without putting human hands on the buildings or human feet on the roofs.
“We can go wherever a hummingbird can go,” Tom Weitbrecht, the owner of Greater Boston Drones, a company that provides drone inspection and mapping services, tells me. “I can put an eyeball against what anyone needs to see without ever leaving the ground.”
Anything visible to the eye – areas of stain or mildew, breached flashing, broken shingles – can be recorded in high definition and in two or three dimensions, by the drone’s camera. A drone’s perspective may also capture details in areas a hands-on inspection can’t reach. And you don’t have to worry about a drone falling off the roof, putting a foot through it or dropping a hammer on it.
Although these are early days for drone usage in New England condominiums, some of our clients are using the technology to inspect roofs, gutters and chimneys as part of a regular maintenance program and are reporting both efficiencies and cost-savings.
FAST AND COST-EFFECTIVE
A condominium community with 30 buildings can inspect every roof, every gutter, and every chimney with a single drone deployment.
The cost, we are told, could range from as little as $1,500 for smaller communities, to $2,500 to $3,500 for larger communities, with 75-to 150 buildings, depending on the land area, elevations and obstructions. Hands-on inspections would take much longer and cost more.
Many cities – Boston among them – require periodic façade inspections for high rise buildings and drones are being used to perform that task. Boston requires inspections by a licensed engineering firm every five years for commercial and residential buildings taller than 70 feet. Traditional inspections require engineers to assess the building from scaffolding placed around it, can take several weeks, cost owners several hundred thousand dollars, and typically require the closing or partial closing of nearby streets. A drone can take high resolution pictures of the façade from all angles in a few hours and transmit them to engineers, who can conduct the inspection from their desks.
Even buildings that aren’t subject to the façade inspection requirement can benefit from periodic drone imaging to track changes that may indicate degradation of materials over time or highlight small problems on their way to becoming bigger ones. A tiny water spot that has grown much larger over the course of a year probably requires attention. For a spot that hasn’t changed, monitoring may be sufficient.
VARIED USES
Community associations can use drone imaging in a variety of ways, extending well beyond regular maintenance, all of which can provide time and money savings:
Insurance. Before and after images of damaged areas can help document an insurance claim. Some insurance adjusters are now using drones that take pictures, analyze the damage and send a report before the adjuster leaves the property.
Energy conservation. Thermal images can indicate heat loss through windows and some roofs, enabling building owners to identify targets for potential energy-saving replacements or repairs. This thermal technology works on membrane roofs common in commercial structures, but not on asphalt roofs more common in residential buildings. It also can’t be used to assess heat loss in brick buildings, but experts say it works fine in clapboard and other non-brick and mortar structures.
Construction. Regular drone inspections can track an ongoing construction project in real time to be sure the work is being done properly and to identify errors or oversights. The construction engineer the association might hire to oversee the project can review drone photos from his/her desk, instead of spending countless (expensive) hours on the site, keeping eyes on the work.
Security and rules enforcement. These are among the obvious areas where drones can be useful, but they are also among the most problematic, primarily because of the privacy concerns these uses can trigger. More of that below.
PRIVACY CONCERNS.
Privacy is an important consideration when deploying drones in a community association.
When it comes to owner privacy, the legal rule-of-thumb holds that individuals have legal rights wherever they have a “reasonable expectation of privacy.” A unit owner clearly has a reasonable expectation of privacy within his/her unit or other areas not readily visible by the naked eye. However, that expectation does not extend to common areas. Unit owners do not have a reasonable expectation of privacy when walking across common grounds, the parking areas or when utilizing amenities such as a tennis court or clubhouse. Exclusive use common area such as a rear porch or patio is a bit of a legal gray area.
A drone flying over rooftops to inspect them is not likely to violate anyone’s “reasonable expectation” of privacy. Drones flying over common areas to monitor parking or dog waste violations would also be on equally solid legal ground.
However, drones hovering over private, exclusive use patios or outside unit windows to see if residents are violating no-smoking rules, storing belongings improperly or housing prohibited pets raise more serious concerns and should be avoided for that reason. The more intrusive the surveillance is, or is perceived to be, the greater the risk that someone will complain that their privacy rights are being violated.
MITIGATING THE RISKS
Privacy concerns should not make associations forego the use of drones to inspect their property or to monitor rules compliance; but boards should recognize the potential liability risks and take reasonable steps to mitigate them:
Whether the association is deploying a drone it owns or (as is more likely for most) hiring a third party to collect images, be specific about where the drone can fly and what images it can collect.
Focus on common areas. Don’t allow drones to hover near or point their cameras directly toward owners’ windows so as to see inside, even unintentionally. Entrances and private decks and patios should also be off limits.
Develop policies for managing the images the drones collect, specifying who sees them, how the images are saved and for how long.
Explain the association’s drone policies to owners. Make sure they understand that drones the association owns or employs aren’t going to be spying on residents.
Inform owners when drones are going to be operating in the community, explain what they are doing and what images they are collecting.
Advance notice of drone operations is essential. If residents are on notice that drones will be operating in the area, they are less likely to be alarmed by them and suspicious about what they are doing.
EYES ON THE PRESENT - AND THE FUTURE
Privacy is a major concern when deploying drones but it isn’t the only one.
Boards should also consider the association’s potential liability for property damage or personal injury. With those liability risks in mind, boards should:
Make sure any company they hire is properly licensed, adequately insured and has experience doing this work.
If the association is deploying a drone it owns, make sure the individual operating it has the “remote pilot certificate” required for commercial operation of a drone. The association’s use of a drone would fall into that category.
Make sure the association’s insurance will cover damage resulting from a drone operated either by the association or by a third party it hires. Even if the drone company is insured, the association may still be sued by individuals claiming harm and will have to defend that suit. For the same reason, the association should require residents operating recreational drones to be properly insured and licensed as well.
Drone technology is still evolving. New risks related to drone usage will no doubt be identified and boards must be aware of them. But they should also be aware of the ways in which community associations can benefit from drone technology. That list is going to be increasing as well.
For more information on weighing the risks and benefits of drones, please contact Attorney Dean Lennon directly at dlennon@meeb.com.