By Mark B. Davis
ATTACK OF THE DRONES : Given the ever-changing world in which we live, it is important for community associations to at least try to keep up with, if not stay ahead of, the latest trends. This can seem like a daunting task for even the most progressive associations. The rapidly expanding use of unmanned aircraft systems, commonly known as “drones,” is a prime example of one of these emerging trends. Drones are taking command of the skies in today’s neighborhoods, and will likely affect an ever-increasing number of community associations.
Drones can be both a positive and a negative for community associations. It has been suggested that drones could assist an association in identifying and remediating bylaw violations that might not be visible from the publicly accessible area around a unit. As discussed later on in this article the rights of the association must be balanced with the privacy expectation of the individual co-owner. In a recent incident in Kentucky, a man shot down a drone that he perceived was spying on his sunbathing daughter. Generally, it seems that people do not take kindly to perceived spying by these unmanned units and assume the worst. This might be an extreme example, but it is something that associations should consider with drone usage.
Unmanned aircraft systems or drones are defined as “an aircraft that is operated without the possibility of direct human intervention from within or on the aircraft” (www.faa.gov/uas/faqs). Drones essentially fall into two separate categories: those that weigh less than .55 pounds, and those that weigh more than .55 pounds.
While at first glance the second category of larger drones might not be a concern to your community association, many companies are developing technology which will enable the delivery of goods via drone in the very near future.
The category of drones weighing less than .55 pounds should encompass all recreational drones in most communities. Despite their relatively small stature, many of these drones are very sophisticated. It is not difficult to conceive how an airspace full of buzzing drones and whirling rotors could be a danger to a busy community. Many of these drones are capable of producing, transmitting, and recording high-definition video. This creates potential problems for associations in protecting the privacy of the individuals who reside in the community. There is very little federal, state, or local regulation regarding these small aircraft.
Drones that exceed the .55 pound weight limit are more likely to be of interest in the commercial context. It may be necessary to adopt a policy or rule that balances the convenience of drone delivery with the safety and privacy concerns of the community. The good news is that the FAA is adopting regulations that will help ensure that commercial drones are operated safely.
In addition to the FAA, states, and some municipalities are trying to adopt regulations to protect the public and its privacy. In Michigan, the only regulations that have been passed so far prohibit drone operators from harassing hunters and fishermen. At the local municipality level, the City of Ferndale attempted to make drone flying illegal (it did not pass). The State of Michigan tried to make it a crime to trespass with a drone over someone else’s property (this has also not passed). Even if any or all of these regulations come to pass, they still will not create a “final” answer for community associations. It is likely that regulations adopted by the FAA will be designed to comprehensively regulate the use of drones. This would have the effect of displacing any attempts to regulated drones by state of local governments. There are still issues that will need to be resolved and rules put in place to keep good order in the neighborhood.
The Association’s Power to Restrict Recreational Drones
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 maybe 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. Thus, the community association’s Board of Directors has the right to regulate such common elements as allowed by the condominium documents. It is very unlikely in most situations that these rights were otherwise transferred.
In the case of recreational drones, it is permissible to ban drone use completely outside a condominium unit. With exception of a complete ban, there are numerous regulations that could be enacted pursuant to the general powers to regulate, which are contained in most condominium bylaws. At a minimum, a co-owner’s privacy should be protected within their unit. Using a drone to spy inside a unit is likely illegal, undesirable, and would violate the nuisance provisions contained in nearly all bylaws. Such regulations should also ensure privacy on the limited common elements, such as decks, balconies, porches, gardens, and/or patios. A co-owner should be able to use these areas free from the buzz and watchful eye of drones. In addition to a prohibition on limited common elements, there are practical concerns about flying above areas where people habitate. Sidewalks, driveways, and streets alike need some regulation to prevent accidents with humans.
Lastly, many projects have general common elements parks or other general use areas for co-owners. This is where the reasonable discretion of the Board of Directors comes in. In projects where there is ample space, it may make sense to set aside certain common areas for drone flying during specific times. Depending on the particulars of any project, well thought out and reasonable regulations and policies will be required to address recreational drone use.
If/when the use of commercial drones for delivery purposes comes to fruition, the stakes will change for the community association. These drones, which will be larger and carry payloads to deliver to individual consumers, should in theory have professional pilots and ample supervision. Unfortunately, theory does not always become the truth. There are numerous problems that commercial drones will present in this context, where these drones land, when will deliveries be made, where they can drop their packages, what routes can they travel, and even more important, is who is responsible if something goes wrong with the drone.
In an attached condominium unit setting with shared elements like sidewalks and driveways, the safety and placement issues of drones are self-evident. In the site condominium situation, those issues can be resolved by limiting access to the property owned and controlled by the individual unit owner.
A second and more perplexing issue concerns who is responsible if a drone delivery is set up. Does the Association ban drone delivery and prohibit the individual co-owner from receiving products via drone delivery? Does the Association somehow make the condominium premises off-limits for the company making the drone delivery? Each of these scenarios create problems. The enforcement against the individual co-owner might seem to be the easiest, however, if contested, a rule may not end up being enforceable. If that becomes the case the Association will need to amend their documents to include such a provision in the bylaws themselves.
Enforcement against delivery companies entails a number of problems that may prove costly and difficult to resolve. Questions arise, including: Who made the delivery? Were they aware that they were trespassing? If they don’t respect the prohibition what is the remedy? A lawsuit against Amazon or another major company by an association could prove quite costly, and there is certainly no guarantee of success. There is also the chance that if the Association were to hamper this sort of business the government could impose rules that will force allowances. This happened previously with satellites dishes and the Over the Air Reception devices regulations (OTARD). Drone delivery could end up with similar rules regarding their operation and which limit and affect an association’s ability to regulate them.
The operation and use of drones for the near future is going to be a volatile and quickly evolving area. As you can see from this article, there are certainly many questions regarding drones. It will be incumbent upon community associations to resolve these issues in some fashion going forward. It will be important to keep abreast of drone usage and laws going forward. Association boards should take action to make sure that a strategy is developed to protect the community’s safety, privacy, and general well being.
Mark B. Davis is an associate attorney with the firm. He has extensive experience in community association law and has been with the firm since 2007. Mark served honorably in the U.S. Army, achieving the rank of Sergeant as an infantry soldier. His particular expertise in community association law includes collections, litigation (both federal and state), Fair Housing matters, and bankruptcy law.
You can reach Mark at our Plymouth office at 734-459-0062 or via email at firstname.lastname@example.org.