There is a growing sense of concern among community associations regarding the legal ramifications as the popularity and availability of drones rises. This begs the question of whether there are limitations condominiums and HOAs can impose on the ability of residents to use drones within the community and how to minimize potential liability to community associations arising from the use of drones.
What laws govern drones?
In 2015, Florida passed the “Freedom from Unwanted Surveillance Act” which can be located at Section 934.50 of the Florida Statutes. The Act limits the use of drones by not just private individuals, but also by governmental entities, defining a “drone” as a powered aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, flies autonomously or is remotely piloted, can be either expendable or recoverable, and can either carry a lethal or non-lethal payload. This clearly covers the remote-controlled quad-copters and other aerial devices that are widely available and operated recreationally today.
Persons are prohibited from operating a drone to record privately owned real property or the occupant of that property in violation of that person’s reasonable expectation of privacy. A person as an expectation of privacy if the person is out of view of the public at ground level.
Commercial drones are also regulated by the Federal Aviation Administration (“FAA”). However, the FAA has only issued an advisory for recreational drones limiting recreational use to below 400 feet, within the sight of the operator, and away from airports.
How should the use of drones be regulated among homeowners’ and condominium associations?
Drones equipped with recording devices present novel legal issues in the community association context. If a drone is used to harass or stalk a neighbor clear causes of action can arise. This is also true if a drone user invades another’s privacy by recording them on their property or inside their home. These violations clearly raise neighbor versus neighbor legal issues, but what role can or should an association play in such cases?
With so many questions surrounding the legalities of recreational drone use, there must be a balance interests. When deciding what kinds of regulations to adopt for recreational drone use, associations should consider not only the use rights of individual residents, but also the privacy interests and well-being of the community as a whole.
While universal bans on drone use may be considered unreasonable, associations can use their rule-making authority to adopt reasonable rules governing the use of recreational drones by unit owners and residents, as well as the use of drones in or on the common areas of the community. Some moderate restrictions that all associations can consider adding to their governing documents include common area prohibitions, designating landing sites, imposing time restrictions as to when drones can be flown, and imposing use restrictions regarding how close drones can fly to buildings, windows, etc.
Associations should also consider amending their governing documents to address issues of liability for any damage to persons or property relating to a drone use, including providing that the owner or tenant using a drone agrees to indemnify the association in the event a claim is asserted against it relating to an act or omission involving such drone.
Advancements in technology are making drones more affordable and widely available. While laws and regulations evolve to govern commercial drones, regulation of recreational drones lags behind. Community associations can and should fill some of that void by adopting reasonable rules governing the use of recreational drones by unit owners and residents to protect the interest of its members.