The use of drones for recreational and commercial purposes occurs more frequently every year. While there are many benefits to drone usage, the likelihood of drone-related disputes and incidents on homeowner association (HOA) property is of concern to many HOAs and HOA members. HOAs and members can take steps today to allay concerns about drone usage among their communities as well as to reduce the liability involved.
The topic can be approached by looking at the factors involved with drone usage by HOA Members, HOAs themselves and also third-parties.
All parties could seek legal advice early to ensure that their best interests are represented and to proactively avoid the possibility of drone-related disputes.
Drone Usage By HOA Members
Familiarity with an iPad is nearly all an individual needs to join the ranks of amateur drone operators today. Many homeowners associations have taken reactive measures to regulate drone use by the owners in their communities as a result of growing amateur interest.
While association governing documents differ in the way drone usage by owners is regulated and restricted, there are Federal and Florida State restrictions that apply to all usage of drones. Some of these legal restrictions require the operator of the drone to be licensed, for the drone not to fly in airspace located within a certain mileage of airports and helipads, for operators not to operate drones heavier than a given weight or at velocities faster than 100 mph.
Civil penalties for violation of federal aviation laws could be as high as $27,500 for each violation.
At lower altitudes, drones may also be subject to the same privacy and trespassing restrictions as would be walking onto a neighbor’s property. This is especially true if the drone is outfitted with a camera. Recreational drone pilots who operate drones from communities regulated by associations can significantly reduce their liability by being aware of the federal laws, state statutes, local codes and HOA/COA bylaws and covenants that apply.
Drone Usage by the HOA
For all intents and purposes, an association can use drones as part of their inspection and enforcement processes. Florida law does not explicitly prohibit drone use for HOA inspection purposes and state and county courts generally provide protections to HOAs enforcing bylaws and recorded covenants.
There are, however, situations where an owner or resident’s right to privacy may supercede the rights of an HOA to inspect.
Should a resident or owner’s right to privacy be evoked, it may be protected by language within Chapter 934.50 of the Florida Statutes. This statute specifically states that an person, association or entity may not use “a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent.”
“All parties could seek legal advice early to ensure that their best interests are represented and to proactively avoid the possibility of a legal dispute related to drone use.”
Such a challenge can mostly be avoided by the HOA taking the same proactive measures before a fly-by inspection as an association is expected to take for any in-person inspection. Obtaining blanket written permission for drone inspections, incorporating notice protocols in the governing documents of the HOA and also defining the scope of drone inspections within governing documents can proactively prevent disputes in the future.
Another factor that HOAs need to be aware of is that the Federal Aviation Administration (FAA) is most likely to consider the use of drones for HOA inspections to be commercial in nature. This means that any individual who mans the controls of a drone conducting an inspection would need to have passed the FAA proctored exam, passed a criminal background investigation and be a licensed commercial drone operator. This precludes an HOA board member with hobbyist drone expertise using that expertise alone to control a drone conducting official HOA business.
Once an HOA has taken measures to ensure that trespass, privacy and licensing concerns have been handled, the HOA can consider steps to significantly reduce the risk and impact of negligence claims.
Should an HOA-controlled drone fall onto or crash into an owner or guest’s property or person the possibility of a successful lawsuit against the HOA for negligence is very high. HOAs can help avoid such an incident by properly vetting drone operators before the drone takes flight and allying the financial burden of such risks by obtaining drone-specific liability insurance.
Finally, being proactive and transparent are the best policies to reducing resistance to and liability due to drone usage. HOAs can discuss the use of drones in HOA meetings, work with legal counsel to draft drone-specific language in the association’s governing documents and follow the letter and spirit of all laws and regulations to ensure that all actions are legal and viewed as taken in good faith.
Drone Usage by Third Parties
HOAs can contract licensed third-party commercial drone operators to conduct inspections or security patrols of common areas. Owners and residents may hire drone pilots to conduct aerial footage of events on their property (eg: a wedding reception). In the not-so-distant future, both the association and its members may arrange to have packages delivered into the community by drones.
It is a good practice that any third-party-operated drones in an HOA community be appropriately licensed and insured. For added protection, the association can require that the third-party name the HOA as an additional insured party on the certificate of insurance.
South Florida Law
South Florida Law is a full-service real estate law firm with extensive experience in representing parties involved in HOA-related disputes. We can also proactively work with HOA members, residents and HOAs themselves to prevent conflict. As the commercial and recreational usage of drones continues to rise, we have the experience and resources to work with any party to reduce their liability and ensure their compliance with all applicable laws affecting drone usage in their area. If you are an HOA or HOA member preparing to fly a drone within your community, or if you are involved in a dispute over drone usage, contact us today by calling (954) 900-8885 or via our contact form.