Drones, which were once a concept of science fiction, have morphed into a common military weapon as well as popular consumer good and even children’s toy. If Amazon gets its way, drones will be delivering products to our homes.
These “toys” can be troubling, however. Not only can they be loud, but they're sometimes equipped with cameras and telephoto lenses. What should you do if you see that your neighbor is flying a drone over your property? Does the law prohibit such activity?
In the old system of British common law, courts enforced the notion of “ad coelum et ad inferos,” literally meaning “to the heavens and to hell.” This meant that a property owner had rights to everything above his land and everything under it. This concept has mostly disappeared from American courts, now that common electrical wires and pipes run under our homes, and aircraft fly above them.
Legislation has not entirely caught up with new drone technology, however. The Federal Aviation Administration has passed regulations with the express intent of "minimiz[ing] risks to other aircraft and people and property on the ground." These rules largely exempt hobby and recreational flying, which may be what your neighbor is doing.
New state or federal laws will soon become part of the mix. Many states are studying the matter in readiness to pass legislation, and some have already passed it.
In Florida, for example, Criminal Code Section 934.50 forbids using drones for surveillance in violation of another person's reasonable expectation of privacy. In Arkansas, AR Code Section 5-60-103 forbids using drones to invade privacy and commit video voyeurism. In California, Civil Code Section 1708.8 forbids the using drones to record another person without consent. And Nevada law (NRS 193.130) prohibits weapons on drones.
An online search for the name of your state and "drone law" should turn up more information. If your state hasn't yet created a way to take action against a neighbor, what's the best way to force your neighbor to stop inappropriate use of the drone?
First of all, don’t overreact, like the man in New Jersey who took out a gun and shot his neighbor’s drone out of the sky. This sort of conduct will surely escalate tensions between you, and perhaps get you into deeper trouble with the police for criminal mischief.
Instead, act as you would act if your neighbor engaged in any other annoying conduct. Reach out by phone or email. Knock on the neighbor's door. Ask politely to please refrain from flying the drone over your property—suggest that the neighbor fly it, perhaps, in a public park or simply hover it over his or her own backyard.
It’s possible that your neighbor did not realize that you noticed the little machine, or that it annoyed you. If there’s no fence between your properties, perhaps the neighbor didn't even realize he or she was crossing the property line. The vast majority of neighbors will stop annoying conduct when asked nicely.
What if your neighbor does not respond to your emails, calls, or reasonable requests to fly the new toy elsewhere? You might have a cause of action in court known as private nuisance. The nuisance in this case, you could argue, is the noise of the drone—the whirring of the engine or blades—disrupting your quiet use and enjoyment of your premises. Filing a lawsuit will often prompt a neighbor to cease annoying conduct.
You could also make a legal case for trespass. The drone is flying over your property, outside the bounds of your neighbor’s yard. As mentioned above, you don’t necessarily own all of the air rights above your property. But you probably do own the immediate air rights surrounding the top of your home.
There is no unified answer to “how high” homeowners own. Regulations vary by state. But any photographs that you take of the flying drone, to show a court how close the machine is getting to your yard or windows, would surely help convince a judge that the flight constitutes a trespass.
One of the more frightening aspects of personal drones is the possibility that they might include cameras. These cameras could be powerful, allowing a snooping neighbor to hover over your property and see people and activities that the neighbor shouldn't be seeing. As discussed above, this has been a primary concern among the few states to pass drone legislation so far, and is likely to be addressed by additional states' new laws.
Perhaps you have reason to believe that your neighbor’s drone isn't just innocently flying, but is actually equipped with a camera. Even without drone-specific legislation, you should remember that you have a cause of action against your neighbor for the common law tort of invasion of privacy. In court, you would be able to ask the judge for a temporary restraining order and injunction—essentially, a court order directing your neighbor not to fly the drone.
A difficulty with suing a neighbor under any of these trespass or nuisance theories is that your damages (the amount of money a court could award you) are probably nominal. Unlike in a case where you were suing for breach of contract or property destruction, here it would be difficult to show a great deal of quantifiable financial harm.
As with most neighbor disputes, you are likely better off resolving this between the two of you, or with a mediator, than going to court. But drones present a number of troubling legal issues that courts will increasingly be called upon to resolve.
The Federal Aviation Administration (FAA), the agency tasked with oversight of commercial and recreational flight, states that flying drones "in a reckless manner is a violation of Federal law and FAA regulations and could result in... criminal action."
It further advises that you call local law enforcement if you observe a drone being flown in a way that could be dangerous to people or other aircraft. FAA regulations also prohibit drones flying above 400 feet, given that they could interfere with flights. While this might not be much assistance to you if you see a drone outside your window, the FAA's increased attention to drone regulation should also act as a deterrent against un-neighborly behavior.