Drones in Community Associations

Written by Posted On Monday, 02 February 2015 11:07

Drones -- also known as "unmanned aerial vehicles " -- are everywhere. Our military uses them in warfare; archeologists scan ancient Peruvian ruins to avoid damage, and others survey hydroelectric dams. One even illegally landed recently on the White House lawn.

Currently, commercial use for drones -- including real estate marketing -- is prohibited unless an exception is issued by the Federal Aviation Agency (FAA); recreational (hobby) use is allowed under certain conditions, primary of which is that the craft must be flown within visual line sights of the operator and not over 400 feet above ground.

The FAA has oversight responsibility, and estimates that by 2020, over 30.000 small drones will be used for all types of business purposes –including one proposed by Amazon's Jeff Bezos for same day package delivery to its customers.

Law firms, anticipating lots of legal questions and lawsuits based on drone use, are even setting up "drone practice"groups so as to get a head start when the FAA issues its final authorizations.

Is there a role for drones in community associations? According to Marvin Nodiff, a Wisconsin condominium attorney and author of "The Dark Condos", "associations should consider this new drone technology to take advantage of its many beneficial applications, such as providing images depicting conditions of roofs and common ground. Further, associations should protect against potential impacts as drones become more popular for commercial and other uses."

Nodiff's book is a fictional tale, that takes the reader on an entertaining, smart and even quirky ride from misguided condo boards to the joys of community living. In the book, the board uses a surveillance drone to search of covenant violations, but accidentally invades the privacy of one of the owners.

There are three types of drones. Public, civil and model aircraft. Common public uses today include law enforcement, firefighting, border patrol and search and rescue. The FAA has an online process where applicants can make their request.

And the FAA is currently working on implementing procedures which, according to a recent press release, "will allow for commercial operations in low-risk, controlled environments." How will this impact community associations?

It is actually mind-boggling to speculate on everything that a drone can do in a community association. First, security. A low flying drone with a camera can spot trespassers and the information automatically relayed to the police.

Inspection of buildings, especially high rise condos in congested urban areas. Often the condo board needs to know the condition of the roof, for example, which requires expensive ladders or scaffolding to access. The drone can inspect with the camera quickly and much less expensive.

While Mr. Nodiff's board president was a little too aggressive when it aimed the drone's camera into a window in a private house, careful use of the drone will allow complete inspections of the entire community. Especially in large communities, the cost saving could be considerable.

And if you are planning to buy or sell a condominium, real estate agents are anxious to have the right to use drones to market their products. The National Association of REALTORS® recently cautioned its members "that the use of unmanned aerial vehicles for real estate marketing is currently prohibited by the Federa lAviation Administration. Such prohibited use of unmanned aerial vehicles may lead to the assessment of substantial fines and penalties."

But NAR made it clear that it "supports efforts to create new federal regulations to allow for the future commercial use (of drones) by the real estate industry."And the FAA is listening. On January 6th, it granted the first regulatory exemption for real estate photography. According to an FAA press release, a Tucson, Arizona company is now authorized to fly a drone "to enhance academic community awareness and augment real estate listing videos."

The company must, however obtain a Certificate or Waiver that ensures the safety of the airspace for the proposed use.

The FAA has received 214 requests for exemptions and to date has only granted 14. In the meantime, however, the FAA is carefully monitoring and enforcing the illegal use of these aircraft. Recently, although it initially fined Rapheal Pirker $10,000 for operating his drone in a reckless manner on the University of Virginia campus back in 2011, it just reached a settlement whereby Pirker only had to pay $1,100. According to reports, he allegedly flew the drone -- which weighed less than 5 pounds -- at "extremely low altitudes" including under a pedestrian bridge.

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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.


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