Question: I’m a real estate broker, and I’d like to post an aerial view of the neighborhood for the property I hope to sell. Is it legal for me to do so?
Answer: That depends on your state’s law, but even then, the answer may not be clear.
The ability of a drone to capture a real-time, comprehensive view of a large area has not been lost on law enforcement, emergency relief services, farmers, and others like you. Having a video on your real estate firm’s website of the property and its environs will surely add to the information viewers will glean from their visit to your site, and if the area is attractive, it may spur them to contact you for a showing.
Get a Waiver from the FAA
Regulations issued in August 2016 by the FAA set many restrictions and limitations on drone operation. These limitations, known as “Part 107” (named for the place in the Code of Federal Regulations where the rules are found), include a ban on flying over people. That ban has an exception: The people must be within a covered building or inside a stationary vehicle. The FAA is concerned about the safety of those on the ground.
But individual operators whose operation will not fit within the exception can apply to the FAA for a waiver of the restriction on flying over people. In your request for a waiver, you’ll need to thoroughly describe your proposed operation and include your reasons for asking for the waiver. Your chances for getting a waiver will be higher if the property you’re selling is in open land or in a sparsely populated area, as opposed to a home in a densely crowded residential neighborhood.
You can apply for a waiver from the FAA online. Go to the FAA home page and type “Request a Waiver/Airspace Authorization” in the search box.
Are You Within the “Buffer Zone?”
Even if you obtain a waiver from the feds, you aren’t “home free” just yet. That’s because the law of trespass, and any specific local laws, might limit or prohibit your flight.
First, consider the height of the drone’s flight. It will have to clear second-story homes and tall trees, so figure 100 feet off the ground at a minimum. But because you’ll be flying over private property, will you be intruding on that property? That depends on whether this height is within the “buffer zone” that owners are entitled to -- that’s the air space above the ground that they can expect to be free of trespass (U.S. v. Causby, 328 U.S. 256 (1946).) The height of the buffer zone is the area in which an unwelcome intrusion will subtract from the owner’s full enjoyment of the property. That’s hardly a clear standard, and it will be up to the courts in your state to give you some concrete guidance on how that buffer zone is evaluated. Fair warning: You likely won’t get a specific height, but instead, yet more guidelines on how to determine the height.
Factors that a court would consider when determining the height of the buffer zone include:
You may also encounter a state or local law that prohibits commercial flights over private property, although the law may make exceptions. To find out whether state laws apply to you, see the National Association of State Legislatures' website and their compendium, Current Unmanned Aircraft State Law Landscape.
Get Ahead of the Problem
As you can see, knowing whether you’ll be on solid ground, so to speak, when you send your drone out over the neighborhood is not a simple task. You’ll be guessing, and guessing wrong could expose you to a civil (or even criminal) charge of trespass. To attempt to avoid these shoals, you could: