drone

Drones: To Fly or Not to Fly?

By Rosa de la Camara, Esq., BHA General Counsel

This is the Year of the Drone. Two months ago the Pentagon announced that while the nation’s defense budget was being cut, drone programs would get more funding support than ever before.

The crash of a recreational drone onto the White House lawn made headlines earlier this year. In late April, a Japanese man admitted he landed an unmanned drone in central Tokyo carrying radioactive sand atop Prime Minister Shinzo Abe’s office to protest nuclear power.

In the private sector, drones have soared in popularity with recreational drone sales exceeding $450 million last year, and climbing.

Florida has the dubious distinction of being the state with the third most drone incidents of the 194 nationwide incidents reported to the Federal Aviation Administration (FAA) last year.

RosadelaCamaraheadshot

Rosa de la Camara, Esq.

The recently enacted Freedom From Unwarranted Surveillance Act severely limits the use of unmanned aerial drones by law enforcement in Florida. However, there is still very little regulation in the emerging world of recreational drone use – powered, aerial vehicles that do not carry a human operator and can be powered remotely.

Useful in our high-rise world?

Because usage of drones in a non-military environment is so new, there is very little precedent to direct Associations. A drone might be used by an Association to further security measures. One might argue that having the Association or its security team fly a drone over the property is not unlike having a roving guard patrol the premises. A drone would have the ability to record inspections, which could be used for security or even maintenance purposes. For example, a drone might be useful to help a property manager obtain a visual inspection of a hard-to-reach balcony in order to determine whether there are any violations. The efficiency and practicality of using a drone for security and maintenance purposes would need to be weighed against the residents’ expectations of privacy.

Just for fun?

In addition to usage of drones by an association for security or maintenance purposes, individual residents may also be desirous of using drones for recreational purposes within the community. The only current limitations on recreational use of drones is an advisory opinion issued by the FAA limiting recreational operations to below 400 feet, away from airports and within the sight of the operator.

One Association’s attempt at limitations

Whether an Association Board is able to regulate or prohibit the usage of drones greatly depends on the scope of the Board’s rule making authority. If a Board is able to restrict the use of motorcycles, bicycles, children and pets over the common areas, why would it not also be able to restrict or prohibit the use of drones over the common elements?

We are familiar with one community which was desirous of prohibiting drones absent approval from the Board of Directors. This particular Association’s governing documents granted broad latitude to the Board of Directors to regulate the usage of the condominium property. The Board of Directors adopted a rule which provided: “Absent specific written authority by the Board of Directors, remotely controlled flying devices (drones) are hereby prohibited from being physically present or otherwise being used or operated over, on or in the common elements or limited common elements of the Condominium. Any damages occasioned by the operator of the drone will be the responsibility of the operator and/or of the unit owner. No camera-equipped drones will be allowed.”

Flying drones for recreation is legal in the U.S. as long as the operator follows a set of rules including no-fly zones around airports, but it’s currently illegal for commercial purposes, such as professional photography, without an exemption from the FAA. Eagerly awaited rules from the FAA are supposed to shed light on usage of drones for non-recreational purposes, but will do little to regulate private usage by Associations or their residents. Clearly, usage of drones by private citizens is an area of the law needing regulation and direction.

In uncharted territory

So what’s an Association to do? For now, common sense must prevail between the competing interests of facilitating an association’s monitoring for security/maintenance purposes, a civilian’s right to use a recreational drone, and a resident’s right to privacy.

Associations which are contemplating establishing limitations on usage of drones might begin by prohibiting residents from using camera-equipped drones and limiting the usage of drones by the Association only in very limited instances which are predefined by the Board of Directors.

Drones equipped with cameras must be used carefully and sparingly, especially taking pains to avoid any possible allegation that they are being used to harass or spy upon residents.  Certainly, a camera cannot be used to record activities inside of the resident’s homes since the residents have a reasonable expectation of privacy.

As technology improves and prices of non-commercial drones keep dropping, the challenge for Associations will be to balance competing interests and to come up with a policy that will protect owners’ privacy while facilitating management’s security and maintenance duties. •

Rosa de la Camara is shareholder with the law firm Becker & Poliakoff where she has worked for 27 years concentrating her practice on representing community associations and addressing complex issues involving Boards, unit owners, managers and state and local policymakers. She is renowned for her well-honed skills and serves as General Counsel to many boards, including BHA. She has been appointed to numerous offices and boards at the State and local levels.