BFV Perspectives, Drones in Business, | Mar 21, 2018

Bothered by a drone in your backyard? Here’s what you need to know

Enquiring minds continue to ask: “What can I do to prevent drones from flying over the immediate reaches of my backyard and if they fly there against my wishes, can I take them down?”

These sound like simple questions that ought to have straightforward answers. But questions about excluding drones are really questions about ownership rights in the airspace above private property. All airspace above the United States is a “highway in the sky” under the exclusive jurisdiction of the federal government. This highway It is available to anyone, subject to federal regulation and control and to a lesser extent the states.  So, the fundamental right of a property owner (or one in rightful possession) to exclude anyone from his or her land for any reason, subject to recognized privileges and licenses (firefighters, package-delivery, meter readers, cookie-selling scouts) does not transfer easily to airspace.

In the case of manned flight, it is viewed as so beneficial and necessary that property owners are expected to and must accept a certain amount of inconvenience or annoyance unless aircraft are flown in such a way as to “substantially interfere” with the use and enjoyment of the property.  When that happens, the law recognizes an “aerial trespass.”  Damages can be recovered, but if the flight path cannot be altered, the property can be condemned.  In fact, according to the United States Supreme Court, it is hard to imagine a landowner could possess full use of the land absent “exclusive control of the immediate reaches of the enveloping atmosphere.” (U.S. v. Causby, 328 U.C. 256, 265 (1946).

Members of the drone industry, the legal profession and government are currently trying to analyze how to define the “immediate reaches” of the atmosphere above a residence — or a backyard or undeveloped land — and what drones must do before they create “substantial inference” with property and commit “aerial trespass.” Part of the dilemma is that the mere presence of a drone creates fear of surveillance and data collection, in addition to fear of physical injury should the drone fail or hit an obstacle or be racing at 95 miles per hour.  Although everyone is aware that surveillance can be accomplished by a determined soul in numerous other ways than by using drones, seeing the drone brings the risk to mind, and the drone is in a position to capture information inadvertently. People do not want to modify their behavior in their own backyards. 

If a drone is flying over your property recklessly, then document the incident to the best of your ability.  If you know the operator and feel comfortable addressing the matter directly, safely and informally, then that’s an option.  Otherwise, if the drone is being flown recklessly, crashes in your yard, damages someone, or damages property, the only real option is to contact local law enforcement by calling 911. Although the FAA publishes a contact email and hotline phone number for reporting drone problems, the FAA usually refers citizens back to local law enforcement. It may be necessary to engage counsel to pursue regulatory involvement or to deal with reckless drone operations over residential property through the courts.

Another suggestion is to post your property with notice that drones are not permitted, and to position the notice where it may be visible from the air — in a tree, on the back of a chimney, on the top of a bird house, on the roof of the condominium, etc. A drone operator’s repeated violation of the airspace at low altitudes not withstanding notice to keep out, may position a property owner to seek relief from the courts.  While these signs will not prevent someone from flying over your property, they may cause the operator to stay at higher altitudes and to pass over your property quickly. 

All states, including Georgia, recognize the right to defend oneself from imminent danger of death or bodily harm, but what constitutes “imminent” danger is a question that must be answered by reference to facts and evidence. A drone hovering 10 feet above the ground may (or may not) pose a greater threat than one located 50 or 100 feet above property.  Knocking down a drone or a model aircraft that is about to crash into a person, animal, glass window, or other significant damage is likely to be found justified.  Downing a drone solely because it is flying above the property is probably not going to be justified.  The courts balance the likelihood and severity of perceived harm against the damage caused by downing the drone.  Absent a significant, imminent threat, destruction of the drone by any method, based on the presumption that it might be “spying,” may well result in criminal prosecution and/or civil liability. Many typical homeowner’s insurance policies exclude “intentional” actions, even those the law otherwise considers justified.

The use of firearms against a drone is may well be ineffective and could lead to arrest for damage to property and endangering human life.  In short, unless necessary to avoid an imminent and greater harm, leave the drone alone and call 911.

If you have questions about commercial drones and their operation or if drones are affecting how you use your property, we are here to field your questions and provide direction.

BFV Perspectives, Drones in Business, | Mar 21, 2018
Lydia M. Hilton
Lydia M. Hilton

Lydia Hilton knows bankruptcy – and drones. Having spent more than 25 years concentrating on real estate litigation and bankruptcy matters, today Lydia also applies that versatility to the highly entrepreneurial business opportunities within unmanned aircraft systems (UAS), a/k/a “drones.”