Own a Drone? Better Make Sure Pilot is Licensed and Device Is Registered and Insured

Drones are in the air.  It’s hard to look up these days without seeing one or more of these tiny (and sometimes not so tiny) flying vehicles, and some of them belong to condominium associations, using them to inspect their buildings or to monitor compliance with their rules.

If your association has acquired a drone, or is planning to, there are a few things you need to know about them, beginning with the registration and licensing requirements.  The Federal Aviation Administration (FAA), which establishes ground rules for air space, requires that all drones weighing more than .55 pounds must be registered with the agency. People flying drones in this (more than .55 pounds) category solely for pleasure (recreational drones) must obtain a drone operator license, which requires passing an on-line test that experts say is “impossible to fail.”  Anyone operating a drone, regardless of size,  for commercial purposes must obtain a “remote pilot certificate” the test for which is slightly (though not much more) difficult than that required for the recreational license. 

Condo associations are considered commercial operators, even though they are flying the drones exclusively over their own property and aren’t using them for commercial (money-making) purposes. The FAA doesn’t care how you’re using the drone; as soon as it leaves the tip of the grass, it’s in FAA-controlled air space and has to comply with the agency’s rules. 

Compliance with the FAA registration and licensing requirements is important, but it is by no means the only  issue drone-owning condo associations should consider.   Potential liability is also a concern.  You may not know how to answer the age-old “If a tree falls in the forest” question, but if a drone owned by the association falls on an automobile or an individual, there is no question that the association will be liable for the damages. So before your drone leaves the ground, you want to make sure the association has the insurance coverage it needs.

The association’s existing policy probably covers suits resulting from damage caused by third party drone owners – individuals or businesses.  The association will have to defend these suits even if it isn’t responsible for the damage.  But some insurers may require additional insurance for associations that are operating the drones. You should ask your agent if your insurer is among them.  Boards might consider hiring someone to pilot their drone, but if you do, make sure the individual you hire is both licensed and insured.

Privacy Rights

Drones falling from the sky could damage property or people; drones flying over your community could violate the privacy rights of residents, or be accused of doing so, creating another potential liability boards should consider.

Privacy rights are complicated, to say the least.  The U.S. Supreme Court has ruled that individuals have a “reasonable expectation” of privacy, defined as an expectation that “society is willing to recognize.”  Applying that rule, the High Court has held that aerial surveillance of a private home that identified illegal marijuana plants was not a privacy violation because “there is no reasonable expectation of privacy for areas plainly visible from the air.”

But the court has also recognized that technology might change the definitions of both “plainly visible” and “reasonable expectations.”  The court noted: “Just because technology develops new and innovative ways in which a person’s privacy can be violated must not dictate whether that person retains a legitimate expectation of privacy and whether society should continue to recognize that expectation as reasonable.” 

How courts will apply this legal theory to drones isn’t clear, but  we think some drone uses will create more privacy concerns than others.  A drone flying over rooftops to inspect them  isn’t likely to violate anyone’s “reasonable expectation” of privacy.  Drones flying over common areas to monitor parking or poop violations would also seem to be  on solid legal ground.  Drones monitoring swimming pools become a little ‘big-brotherish,” we agree, but a pool is a common area in which people should expect their behavior will be observed. 

Managing the Risks

Drones hovering over private patios or outside unit windows to see if residents are violating no-smoking rules raise more serious concerns. The more intrusive the surveillance is, or is perceived to be, the greater the risk that someone will complain about an invasion of privacy. 

This doesn’t mean associations shouldn’t use drones to inspect their property or to monitor rules compliance; it does mean that boards should recognize the liability risks and take reasonable steps to mitigate them, among them:

·         Focus on common areas. Don’t hover drones near or point their cameras directly toward owners’ residences.  Entrances, windows and private decks and patios should be off limits.

·         Inform owners when drones are going to be operating in the community and explain what they are inspecting.

·         Develop policies for managing the images your drones collect, specifying who sees them, how the images  are saved and for how long.

·         Make sure anyone operating the association’s drone is properly licensed and (if a third party) properly insured.

·         Make sure the association has the insurance it needs to cover potential liability risks.   Also be aware that if your drone is involved in an accident that seriously injures someone or causes property damage in excess of $500, you have to report the incident to the FAA.

The liability concerns, licensing and insurance requirements for drones may discourage many condo associations from using them. But all will have to deal with their use by others – both residents operating recreational drones and businesses delivering products to community residents. Anticipating privacy complaints, noise complaints, property damage and other headaches, some boards are considering banning drones entirely.  We don’t think that’s the  best idea, nor is it likely to be feasible.

Regulating Drones in Your Community

The FAA estimates that there were more than 3.5 million recreational and commercial drones operating in the U.S.  last year.  Some futurists predict that number will grow to more than 1 billion worldwide by 2030.  Many condo residents already own or will acquire recreational drones, and most will like the idea of having drones deliver their pizzas and their Amazon packages quickly  to their doors. While prohibiting drones would not be popular, boards can and should enact rules regulating their operation.  A few suggestions: 

·         Limit the size of drones that can land in the community, designate take-off and landing areas allowed for them and restrict their hours of operation to avoid or reduce noise complaints.

·         Require commercial operators to be licensed and insured.

·         Require owners of recreational drones to register their devices, obtain the license required to operate them and to have the appropriate insurance for them.

·         Also require residential drone owners to sign an agreement holding the association harmless for damage caused by their device. This won’t prevent plaintiffs harmed by the drones from suing the association, but it may make owners more aware of the need to operate them safely.

·         Encourage owners to operate their drones safely and politely. Emphasize the need to avoid  behaviors (such as pointing cameras directly at owners or into their homes) that would disturb residents or trigger privacy concerns.  

Drone technology is still new and drone usage is still evolving.  As with any new technology, association boards should address the issues they can identify or reasonably anticipate and be prepared to respond quickly to those they can’t predict. 

Written by

Mark Einhorn | meinhorn@meeb.com

Justin Magsarili | jmagsarili@meeb.com