Can I Use a Drone for My Real Estate Business?

If your drone will end up taking pictures of people as well as property, the answer is probably "No."

By , Attorney

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/‚ÄčAirspace 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:

  • Who are the affected landowners? Residential neighborhoods are likely to receive more protection than commercial ones or open land.
  • How noisy is the drone? Predictably, a loud craft is going to be viewed as more intrusive than a silent one.
  • What is the purpose of the drone's flight? Here, a court might give more protection to commercial flights (like yours) than to a hobbyist who is hoping to capture photos of sunbathers or children at play. But while this distinction makes sense on one level, it could result in different zone heights, depending on the purpose of the flight, which would be quite confusing to explain and follow.

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:

  • Talk to the neighbors first and get their buy-in. If there's a neighborhood or homeowners' association, start there, or look for a "Next Door" type of local message board. Let owners know when you'll be filming, so they can adjust their activities accordingly. Offer to make the video available for download to everyone, and emphasize its usefulness should they want to use it personally.
  • Lobby for a state-wide, clear standard. This area of the law is rapidly evolving, with legislatures in every state facing bills that attempt to clarify issues just like this. Contact your legislator, or find a group whose interests align with yours, who might sponsor such legislation (such as a group of hobbyist drone operators).

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