Do property owners have possessory rights in the airspace above their land? Section by section and word by word, the first draft of a proposed “Tort Law Relating To Drones Act” was considered and debated by the entire Uniform Law Commission at its 2018 annual meeting.
The first draft of the ULC drone act provided that a person intentionally operating an unmanned aircraft in the airspace below 200 feet above the surface of property, without the consent of the owner, was liable for trespass. No trespass would occur where the conduct was protected under the First and Fourth Amendments, required by first responders and law enforcement, utilities, and other similar exceptions.
The unmanned aircraft industry fired off a maelstrom of criticism that basically boiled down to this: Property owners have no possessory rights in ANY airspace. Under this view, no business, landlord, association, hospital, homeowner, school, playground, research facility, place of worship, state or municipal government, contractor, dairy farmer, poultry farmer, or rancher may exclude drones from flying over private property at any altitude. Under this view, any possible protection from drones could– and would have to–come solely from the federal government through special relief (temporary flight restrictions or no-fly zones) or future regulation.
Others responding to the draft re-affirmed that State governments have not been stripped of their traditional authority. They are entitled to exercise their police powers regarding privacy and private-property rights affected by low-altitude drone operations. The United States’ Supreme Court’s decision in Causby stating that “if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere” seems to support States’ authority.
In the latest meeting of the ULC Committee, the Committee appears to have pivoted away from a per se trespass rule. It has asked the Reporter to re-draft the statute to permit property owners to recover only if drone operators cause “substantial” damage or interference with the use of property, which was the remedy the Committee originally deemed inadequate. A new draft will be ready in early 2019. If a satisfactory law is ultimately approved by the entire ULC, then it will be up to the States to enact it. Currently, the only Georgia law on drones provides that only the State may enact such laws.
The integration of drones into everyday life has enormous potential both for good and for bad, and it’s clear that integration will mean revolutionary changes at every level of personal and business life. Millions of drone flight will occur each day. Those changes may be exciting or uncomfortable, depending on your point of view.