Flying Right: Avoiding Privacy and Legal Violations with Real Estate Drones

There’s no question that drone photography has been a boon to the real estate market, making it more affordable and easier to show the full footprint of a property, as well as highlight any geographical or landscape features that add value to a home, such as waterfront proximity, pools and more. But with the rise of drone usage in real estate also comes an increase in legal and privacy concerns that realtors need to be aware of to avoid potential legal entanglements.

Trespass-by-Drone

One of the biggest concerns in real estate drone usage is what’s known as “trespass-by-drone.” The extremely wide angle of an aerial view may show more than just the property up for sale. For example, the image may show a neighboring pool or backyard, people enjoying that pool or backyard, or even capture people and private spaces through a window. If a neighbor’s private property or an identifiable person is displayed without consent in the MLS listing or elsewhere online, the responsible realtor is open to potential litigation.

To play it safe, realtors and drone operators should heed the following:

• Obtain permission from the property owner before flying a drone on their property.
• Be aware of the local privacy laws and regulations and fly your drone in accordance with those laws and regulations.
• Do not fly your drone over neighboring people or private property without their permission.
• Be careful not to record people or property without their knowledge, and edit out any accidental capture before posting online.
• If you are using drone footage or other images in an MLS listing, be sure to blur out any identifying features, such as license plates or house numbers.

Airspace Regulations

Drones are subject to airspace regulations imposed by the Federal Aviation Administration (FAA). While it is typically the case that a homeowner also “owns” the airspace above their property, there are some locations that fall under restricted airspace. Regulations dictate where and how high drones can fly, and if they can even enter the airspace at all. For example, a property may be located close to an airfield or secure facility with closed airspace, so flying a drone for a real estate photo may not be possible.

Additionally, some states and municipalities have their own laws and regulations that prohibit drones from flying over specific areas. The City of Denver prohibits all flying objects (including drones) from Denver park facilities and most of downtown, though permits are available for special events. Boulder, Cherry Hills and Telluride also have their own drone regulations. (See more Colorado drone laws.)

Risk of Property Damage

Drone crashes as a result of mechanical failure are another potential risk. Drones can and do malfunction and crash, potentially causing property damage or personal injury. Having proper insurance is a must, but may not always protect against personal injury or property damage claims. Most traditional insurance policies exclude coverage for acts considered illegal, so if damages occur while an operator is violating federal or local trespass or privacy laws, traditional liability coverage won’t apply.

Know the Rules

Flying drones for real estate photography qualifies as commercial usage. If a drone weighs more than 0.55 pounds, it must be registered with the FAA. Operators also need to complete an online FAA course to obtain a remote pilot certificate and comply with the requirements of the FAA’s Part 107 Small UAS Rule.

Beginning September 16, 2023, the full FAA Remote Identification Rule will take effect, which requires drones to transmit identifying information about the drone and its operator while in use. This information will be accessible to law enforcement agencies, to assist in prosecuting law and regulation violators. Most newer drone models will be equipped with a remote identification broadcast utility, but older drones will need to be adapted with an accessory module.

Tips for Working with Third-Party Drone Operators

Realtors working with an outside company to capture drone images for their listings should ensure the following:

• The company has adequate insurance coverage for accidents or other potential legal issues.
• Proof of the operator’s current pilot certificate and will comply with all FAA rules, as well as federal, state and local laws.
• Proof of indemnification for any claims related to drone operation, such as privacy, personal injury and property damage.
• A clear understanding of copyright and usage of the resulting images or videos.

Our attorneys can help with real estate and privacy matters.

The experienced attorneys at Hackstaff, Snow, Atkinson & Griess can help navigate issues around real estate disputes and privacy concerns. Contact us today for a free consultation.