A resident is claiming the association does not own the air space above our association. He claims as along as the drone does not take off from common property we have no authority over its use. Therefore he can fly the drone from within his unit’s backyard, but not have it take off or land there. These drones are annoying, can we stop him?
ANSWERS:
There are distinctions between drone use for commercial use and hobby use. Many “hobby” users are actually commercial users violating FAA regulations. For example, one who uses a drone to video real estate listings and posts the videos to the listing page is a commercial user who should be licensed. Anyway, there are various FAA licensing and regulatory requirements that apply more stringently to commercial users. There are general requirements as well such as “line of sight” control, 400 foot ceiling, daytime flight etc., etc. which may be waived by the FAA in certain narrow circumstances.
That being said, I believe the drone pilot would be right as to ownership of the air space. Property ownership concepts suggesting infinite ownership rights above and below real property eroded long ago. For example, a home owner in Newark, New Jersey cannot exact a toll for every plane that flies over his house in its flight path.
Notwithstanding this, most association governing documents prohibit nuisances. In brief, a nuisance is conduct that unreasonably interferes with another’s reasonable use of their property. In your example, to determine whether the resident is creating a nuisance, the Association would have to determine such things as the time, place and manner of the drone use? Is it at 5:30 am? Is it just off of others’ balconies? Does it fly over people causing alarm? What is the utility of the drone use? Is it inspecting window flashing? Is it just being used for fun? What use is being interfered with? Is it videoing people while they are lying on the sun deck in the middle of the day? Is it videoing in owners’ windows?
Essentially a Chancery Judge would be called upon to determine whether the drone pilot’s use unreasonably interferes with others’ reasonable use of their property based on the above and other considerations. Lastly, if a single person or group of people was the exclusive focus of the drone pilot’s attention, there could also be a basis for municipal harassment claims.
McGovern Legal Services, LLC
Francis J. McGovern, Jr., Esquire
New Brunswick, NJ 08903
The Federal Aviation Administration announced a rule in 2015 requiring registration of unmanned aircraft operated for recreational purposes. An explanation of the rule may be found at the FAA’s website, www.faa.gov/uas. However, the United States Court of Appeals for the District of Columbia Circuit issued a decision on May 19, 2017, which basically states that the FAA rule is unlawful as it applies to model aircraft. However, the Court noted that the FAA does retain authority to pursue enforcement against persons operating model aircraft who endanger the safety of the national airspace system. The FAA indicates that it is reviewing the Court of Appeals decision.
As to the issue of regulating drones in a community association, I recommend that the inquirer read an article entitled “Taking Flight”, published in the November/December 2016 issue of Common Ground, a publication of the CAI. It is helpful as to rulemaking of recreational drone operations.
Lewis Montana
Levine & Montana
1019 Park Street – P.O. Box 668
Peekskill, New York 10566
(914) 737-3515
I will not get into the ownership of the airspace however if the documents address nuisances I am
confident that the court would likely side with the association in enforcing
the prohibition of nuisances by the association against this owner.
Kenneth D. Roth, Esq.
Marchetti Law, P.C.
900 N.Kings Highway, Suite 306
Cherry Hill, NJ 08034
kroth@marchettilawfirm.com
Tel: 856-824-1001
The Michigan Condominium Act and general real estate principles allow for regulation of airspace above condominium property. MCL §559.172b contemplates regulation of airspace as it relates to the establishment of a condominium. Real property is divisible “just as land may be divided into layers by the sale of “air rights” thereover.” Cameron, John G. “7.1.” Michigan Real Property Law: Principles and Commentary. Ann Arbor, MI: Institute of Continuing Legal Education, 1993. It is very unlikely in most situations that the “air” rights were otherwise transferred before or during the project’s development. The co-owner’s belief is ultimately based on the incorrect assumption that the air space over condominium property is not “owned” by the Association. While that is true in the sense that the Association does not own any property (the common elements in a condominium are owned collectively by the co-owners), the condominium documents grant the Association the power to regulate common elements for the benefit of all co-owners.
Drone flying can be regulated through the general bylaw prohibition contained in most documents regarding nuisance and annoyance behavior. The Association can use its rule making powers to ban drone flying on condominium property. The fact that he wants to only fly, not takeoff or land, in his back yard seems incredible and unlikely. Even if he were to manage such a feat he would still be subject to any rule adopted by the Association regarding drone usage. Also it is unlikely that he would not have to cross the property of others during the course of the flight. Any community that is doing a bylaw amendment should consider adding such a prohibition directly into their Bylaws if desired. This would make it clear that drone flying is prohibited.
Zelmanski, Danner & Fioritto PLLC
44670 Ann Arbor Road, Suite 170
Plymouth, MI 48170
734-459-0062
mdavis@zdfattorneys.com
Homeowners association’s by-laws typically contain a provision which provides that “no noxious or offensive activity shall be carried on in any home or on any lot or in the common area, nor shall anything be done therein, either willfully or negligently, which may become an annoyance or nuisance to the other owners or occupants. Homeowners association’s by-laws also typically contain provisions which permit the Board to levy fines against owners in violation of the by-laws and to enjoin, abate or remedy the commencement, continuance or repetition of any such violation or breach by appropriate proceedings brought either at law or in equity. Moreover, the by-laws typically provide that all costs and expenses incurred by the Board in connection with any litigation can be assessed against the violating owner.
Mr. John Harris Gettinger, Esq.
118 N Bedford Rd
Mount Kisco, NY 10549-2553
(914)666-8033
jgettinger@kiscolaw.com
At the same time, if a drone becomes a nuisance to the quiet enjoyment of other owners, I believe, an association, provided such quiet enjoyment language is contained in the master deed for the community in question, will have a basis to enforce/limit use.
Still further, an individual, in a situation of un-wanted drone presence, likely would have a violation of privacy claim which could include, under the Federal Privacy Act, the ability for the petitioning party to recover attorney fees.
Nelson Mullins Riley & Scarborough, LLP
BNC Bank Corporate Center, Suite 300
3751 Robert M. Grissom Parkway
Myrtle Beach, SC 29577
Tel: 843.946.5631
patrick.odea@nelsonmullins.com
www.nelsonmullins.com