It’s a Bird, It’s a Plane, No, It’s a Drone!

With the exponential rise in the popularity of drones (technically referred to as “Unmanned Aerial Vehicles”) over the past few years for personal use, as well as current testing by businesses like Amazon for commercial delivery to residences, the federal government and many states, including our state government in Michigan, have taken the first steps to regulate them.

At the federal level, the Federal Aviation Administration (FAA) released the Small Unmanned Aircraft Systems Rule in 2016. Follow this link to read a summary. Note that this rule only applies to commercial use of drones, not recreational/hobby use, which is regulated by FAA’s less restrictive Special Rule for Model Aircraft. Generally, these rules provide for things like altitude, weight and speed limits, requirements that the drone remain within line of sight of the pilot, and other items addressing safety concerns. A pilot must pass an aeronautical knowledge exam for commercial use.

Michigan recently passed its own Unmanned Aircraft Systems Act effective April 4, 2017. Summary bullet points of the Act are as follows:

Cities/townships/counties cannot regulate individual ownership/operation
Cities/townships/counties can establish rules for use by the city/township/county within their boundaries (e.g. police)
Cannot be used for harassment, other criminal use
Restraining order distance applies to drones
Sex offenders’ sentence prohibitions apply to their drone use as well
Cannot be used to capture photos, video or recordings that would invade reasonable expectation of privacy
Cannot interfere with official duties of police, firefighters, paramedics or search and rescue personnel
Creates a task force to develop further statewide policy recommendations regarding drones

Prior Michigan legislation also prohibited: (1) using a drone to interfere with hunting; and (2) hunting with a drone.

Although the foregoing rules and statutes do not specifically mention condominium or community associations, we recommend that boards of directors and managers begin to familiarize themselves with this developing area of the law, as it can be expected that at some point in the near future, they will be called upon to address matters involving drones.

In fact, some community associations in other states such as California have already begun utilizing drones for architectural compliance inspections (this would be considered a commercial use and trigger the requirement for compliance with the 2016 Small Unmanned Aircraft Systems Rule). Additionally, some contractors and service providers such as roofers and real estate agents have been utilizing drones in their businesses. In these cases, it is paramount that the Board consult with legal counsel to develop a plan which will include preparing appropriate rules and ensuring that the proper insurance has been obtained by the association or vendor (note that associations’ standard general liability policies specifically exclude damage from aircraft).

When we prepare amendments to associations’ Bylaws, one popular provision is a complete prohibition of drone use on association property, regardless of whether it is being used for personal/hobby or commercial purposes. Some other associations prefer only to restrict personal/hobby use and leave the possibility open that commercial use will be subject to rules and regulations that may be adopted by the Board. Given the current applicable federal and state laws, we believe either approach to be reasonable and defensible for the time being, based on safety concerns. However, it is not difficult to imagine that a future law may prohibit outright bans on drones within a community but allow reasonable restrictions to apply, much like the Federal Telecommunications Act provisions regarding antennas and satellite dishes.

Many other questions remain with respect to the relationship between drones and community associations and how that relationship might be shaped by future law. Will associations be required to allow commercial delivery by drones? Will associations and other property owners be required to give notice that drones are not allowed in their airspace, and how must the notice be provided? What penalties will apply?

For now, what if you observe damage caused by a drone or potential illegal use of a drone?