(US) Limiting the Sky: Is There Space for Drones in Real Estate Law?

by Reed Smith
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Real property is generally conceived of as tangible and two dimensional. We acquire land described by courses and distances in a deed, depicted by lines on a survey. The laws respecting that land are well-formed; most in the U.S. derive from English common law. These laws give landowners extensive rights in their property, including the right to exclude others. Anti-trespass laws in the U.S. generally permit landowners to use whatever means necessary, short of excessive force, to preserve their right to exclusive use and enjoyment of their land.

Real estate law does not stop at the surface, however. At least in theory, the boundary lines described in a deed extend to the depths of the earth and the reaches of the atmosphere. The ad coleum doctrine, a relic of U.S. property law, assigns to each landowner the column of air extending indefinitely above his or her parcel. Though the Supreme Court has limited that doctrine to make space for modern air travel, landowners’ air rights generally extend approximately 500 feet above the ground. Unless you’re in a large city (where air rights have a marketplace all their own), the sky is the limit.

Lately, however, a new tool for law enforcement, delivery companies, photographers, dronestagram users, real estate agents, journalists, utility companies, and myriad other industries has entered the airspace. Drones—once a product of science fiction—are now mass-manufactured, commercially-used machines that challenge existing rules regarding airspace and property rights. As drones have risen in popularity, complaints about drone activity have soared, and the question of how to integrate them into existing legal frameworks has become more pressing. What right does an individual or business have to exclude drones from the area above its land? At what point does excessive drone activity around a parcel constitute a taking?

Though academics and legislators have discussed drones at length in the context of privacy rights and modern warfare, until recently few had spoken about drones’ effect on modern property law. Part of the difficulty in answering this question is that drones challenge the conflicting (yet equally compelling) aims of real property law and aviation law. The former protects landowners’ interests by relying on firmly-drawn boundary lines and rules of exclusion, while the latter protects airspace as a regulated commons, open for the benefit of the world.

Some believe the Federal Aviation Administration is best equipped to regulate drone activity because of the extensive communal benefits and risks that drones offer. Congress has endorsed this perspective, at least preliminarily, by passing legislation in 2012 that tasks the FAA with regulating “civil unmanned aircraft systems” by September 2015 (a deadline the FAA will not likely meet). Others believe that state and local governments should dictate drone use in and around their communities. At least 17 states have already passed laws restricting drone use. (In one failed local Colorado initiative, property owners lobbied for the right to hunt drones flying above their property.) A third perspective calls for coordinated legislative action grounded in property law principles that harmonize with FAA regulations. Under this scheme, state and local legislatures would pass laws giving landowners a definite right to exclude drones from airspace in a definable area above their land. Supporters believe these laws, in coordination with a broader regulatory scheme, would balance the interests of drone users with those of property owners, as well as provide direction for courts facing novel issues arising from drone use.

Increasing drone activity in commerce, government, and law enforcement will undoubtedly affect individual property rights. Whether or not the laws surrounding drones evolve as quickly as drone technology itself, however, remains to be seen. One thing is certain: these little flying machines paint a pretty picture of home.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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