Legal Implications of Using Drones in Real Estate Inspections and Marketing
The use of drones in commercial and residential real estate inspections and marketing offers significant benefits when used responsibly. Sayer Regan & Thayer has prepared this feature for our professional real estate colleagues to bring a basic awareness of liability, privacy and other potential legal concerns that may result from capturing aerial imagery.
The use of unmanned aerial vehicles (UAVs), commonly known as drones, has revolutionized various industriesincluding real estate. Drones offer unique advantages for property inspections and marketing byproviding aerial views and access to hard-to-reach areas. However, their use also comes with significant legal considerations.
FAA Regulations
The Federal Aviation Administration (FAA) has established comprehensive regulations for commercial drone operations under Part 107 of the Federal Aviation Regulations, among them are:
- Drone operators must obtain a Remote Pilot Certificate from the FAA
- Drones used for commercial purposes must be registered
- Flights must be conducted within visual line-of-site, during daylight hours, no higher than 400 feet above ground level
- Operatorsmust comply with airspace classifications and obtain necessary authorizations for controlled airspace.
Real estate professionals using drones must ensure full compliance with these regulations to avoid potential fines and legal issues.
Privacy Concerns
The use of drones in real estate raises significant privacy concerns. While capturing aerial footage of a property, drones may inadvertently record neighboring properties or individuals, potentially infringing on privacy rights. To mitigate these risks, it is essential to obtain consent from property owners and occupants before conducting drone operations. Operators should avoid capturing images or video of areas where there is a reasonable expectation of privacy. Implementing data protection measures to secure any collected imagery is also crucial. Furthermore, real estate professionals should familiarize themselves with state and local privacy laws, which may impose additional restrictions.
Trespass and Nuisance
Operating drones over private property without permission could constitute trespass. While the exact boundaries of airspace rights remain somewhat unclear, it is generally advisable to obtain explicit permission from property owners before flying over their land. Real estate professionals should be aware of state and local laws that define drone trespass more specifically. Additionally, consideration should also be given to the potential for nuisance claims if drone operations cause unreasonable interference with the use and enjoyment of neighboring properties.
Liability and Insurance
Commercial drone operations carry inherent risks, including potential property damage or personal injury. Real estate professionals should obtain appropriate liability insurance coverage for drone operations. It’s important to understand the limitations of existing business insurance policies, which may exclude drone-related incidents. Considering specialized UAV insurance products that cover property damage, personal injury, and privacy claims can provide additional protection.
Data Management and Copyright
Drone-captured imagery and data raise important questions about ownership and usage rights. It is crucial to establish clear agreements with drone operators regarding the ownership and permitted uses of captured imagery. Real estate professionals should be cautious when using drone footage in marketing materials to avoid copyright infringement.
State and Local Regulations
In addition to federal regulations, many states and municipalities have enacted their own drone laws.
Rhode Island requires commercial drone operators to register with the Rhode Island Airport Corporation and prohibits drone flights over correctional institutions. The state also restricts the use of drones for surveillance of individuals or private property without consent.
Massachusetts, while largely deferring to federal regulations, enacted laws prohibiting drone use for surveillance of correctional facilities. Several cities and towns have local ordinances further restricting drone use, such as requiring permits for commercial operations or banning flights over public parks.
Real estate professionals must be vigilant about staying current with both state laws and local ordinances, as regulations can vary significantly between municipalities.
Contractual Considerations
When engaging drone operators or offering drone services, clear contractual agreements are essential. These agreements should specify responsibilities for regulatory compliance, including obtaining necessary permits and authorizations. They should address liability allocation and indemnification for potential damages or legal issues. Defining ownership and usage rights for captured imagery and data is crucial, as is including confidentiality provisions to protect sensitive property information.
Ethical Considerations
Beyond legal requirements, real estate professionals must consider the ethical implications of drone use. This includes respecting community concerns about privacy and safety, using drones responsibly and transparently, and informing affected parties of planned operations when possible. Adhering to industry best practices and guidelines for drone operations in real estate demonstrates a commitment to ethical use of this technology.
Be Safe, Be Sure
The use of drones in commercial real estate inspections and marketing offers significant benefits but also presents complex legal challenges. Real estate professionals must navigate a web of federal, state, and local regulations while addressing privacy concerns, liability risks, and ethical considerations. As drone technology continues to evolve, so too will the legal landscape surrounding its use. Real estate professionals should stay informed about regulatory changes and emerging legal issues to ensure ongoing compliance and responsible drone operations.
Contact Sayer, Regan & Thayer for more information on this topic.