Does your community want to regulate drones? If so, we can help.
The increase in the use of drones is well-documented, and is expected to continue. With this comes risks to persons and property, and potential privacy concerns for residents. These are among the reasons why an association may want to regulate or even prohibit drones. But the use of drones by certain association contractors may be appropriate, in that it may make the performance of a job more safe, efficient, or cost-effective. Recently, a number of our association clients asked us to draft rules to prohibit the recreational use of drones, with an exception to allow a contractor hired by the association to use drones.
Though the regulation of drone use raises certain legal issues, under current law an association may do so. One issue is potential federal preemption. The Federal Aviation Administration (“FAA”) is the agency that generally has jurisdiction over the use of federally regulated airspace. While it is possible that an increase in attempts to regulate or prohibit drone use by states, municipalities, and common interest communities may, at some point, trigger FAA action, unless and until that time, an association has the power to address drone use. Drone use may also involve the question of whether an association has the authority to prevent its owners and residents from doing something in a location, such as federally regulated airspace, that may not even be part of the community at all. However, there is case law that holds that the rules of a common interest community can create a covenant among the people subject to the community documents, by which they agree not to take certain actions, even if these actions may occur outside of the community. Like enforcing any rule, the enforcement of a drone rule itself may be difficult, and beyond that, there may be no conceivable way to prevent, through the use of a rule, those from outside of the community from flying in the community’s airspace.
If your association would like to discuss how it may regulate drone use, please contact us.