It’s a Bird! It’s a Plane! It’s a — Drone?

Below is an article that was recently published in the Dallas/ Ft. Worth Community Associations Institute Chapter magazine, Community Contact, Winter 2014: 

It’s a Bird! It’s a Plane! It’s a – – Drone?

by Julie E. Blend

You may have recently sightedadrone flying over Texas airspace, especially if you follow college football. A University of Texas student was arrested for flying a drone over Darrell K. Royal – Texas Memorial Stadium during the first home football game last fall. The incident raises the application of the newly enacted Texas Privacy Act. The Act, which governs Unmanned Aircraft (commonly referred to as unmanned aerial vehicles, or “UAVs”), became effective September 1, 2013. Drone usage will undoubtedly increase with announcements by companies such as Amazon of plans to use drones for commercial delivery service. Although it is predicted the FAA will not meet its congressional deadline of September 2015 to adopt safety regulations integrating commercial drones into U.S. airspace, the age of the drone is fast approaching.  The Association for Unmanned Vehicle Systems International predicts in Texas alone, over 5,000 jobs will be created by drone technology with almost 1.1 billion dollars pumped into the state’s economy by 2017. Associations are wise to anticipate the need for implementing rules regulating the use of drones in their communities and preparing for this inevitability.

Most states have considered adopting drone legislation. Texas’ Act, found in Chapter 423 of the Government Code, is the most detailed state statute and has been dubbed the outlier as it allows broad usage of drones by law enforcement. The Act addresses privacy concerns and creates a misdemeanor for the capturing of images by UAVs intended to “conduct surveillance” of a certain person or private property. Violators face criminal charges and civil monetary penalties. In general, the Act does not apply if the drone captures images of public property, or private property with the consent of the owner. There are several exceptions to the Act. For example, real estate brokers are allowed to use drones in the marketing or sale of property, as generally are professors for research, and utility and pipeline operators for inspections and maintenance. Some experts question whether the Act may be subject to constitutional challenge on the grounds that its restrictive nature infringes on certain First Amendment rights.

Last November the National Association of Realtors issued a policy statement that current FAA regulations prohibit the use of UAVs in marketing real estate. It also announced its support of a new FAA regulatory structure for the future commercial use of UAVs in the real estate industry. The FAA issued a press release as well in late November regarding the National Transportation Safety Board’s recent decision in Huerta v. Pirker, which found that UAVs are legally considered “aircraft.” FAA’s anticipated commercial regulations are part of the Next Generation Air Transportation System (“NextGen”).   NextGen is a new national airspace system to be adopted in stages by 2025. Plans for NextGen will improve air traffic control by moving from the ground-based system to a satellite-based system.

So what does the buzz over drones mean for community associations? Associations will need to address the new technology from the standpoint of its inevitable use in the commercial context and the exposure to liabilities this may create. Currently owner drone usage is limited to hobbyists, subject to FAA regulations. Regardless of the purpose of the drone (business or pleasure) privacy is a big concern, especially since a primary use of drones is to transport cameras to out of reach places. Noise and safety are other considerations to take into account. An association will have authority to implement rules and restrictions to regulate the use of drones by owners, tenants and guests. Given the Texas Privacy Act’s express carve-out for real estate brokers, associations should acknowledge the use of drones in brokers’ efforts to sell or purchase a lot or unit in crafting an association policy. In reaching beyond its own community, however, associations may need to seek the help of the local municipality if drone use on neighboring property becomes problematic.

For subdivisions, an association can address concerns by limiting hobbyist use to the owner’s own lot with a prohibition in common areas. In the townhome and condominium setting, drone space is more of a challenge. Associations may need to consider imposing further reasonable restrictions to protect privacy, minimize safety hazards and avoid nuisance. Other measures include consulting a community association insurance professional to ensure coverage for personal injury and property damage that could take place due to the presence of a drone in the community. Owners who operate drones should be required to present proof of UAV insurance coverage.

Although your association may not currently have drone hobbyists, when FAA regulations are in place and the wave of commercial use begins, drones will become more commonplace.   In addition to big players like Amazon, many local companies intend to enter the market for the new technology. For instance, SkyLVL based in Dallas, is an aerial technology company focused on marketing and media production that specializes in commercial real estate services. The sky is the limit for the number of industries that will utilize drones. Communities located near commercial properties with heavy drone usage may face new challenges.

Planning is required for owners quick to adopt the new commercial drone delivery options that are anticipated. Developers may need to design “drone delivery sites” for inclusion in plans or plats. Associations may need to designate drone sites as part of the common areas, or limited common elements for condominium owners. Management and the association should be in agreement on procedures for the commercial use of drones in the course of the association’s business. Perhaps UPS will fly brown drones delivering office supplies, or a coffee traveler and donuts to the onsite management office. Drones may even replace the postal carrier.

Instead of ignoring change, we should be prepared to embrace it. Keep an eye out for new FAA regulations and legislation at the federal and state level. Be prepared with proper insurance and a plan for rules and regulations. Maintain communication with management and your local municipality about potential problem areas created by drones. The question for associations is not if they must deal with drones, but when.