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. 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 might be what your neighbor is doing.
Many states are also in the process of drafting legislation, or have already passed it.
In Florida, for example, Criminal Code § 934.50 forbids using drones for surveillance in violation of another person's reasonable expectation of privacy. In Arkansas, AR Code § 5-60-103 forbids using drones to invade privacy and gather information. In California, Civil Code § 1708.8 forbids entering airspace to record another person "in a manner that is offensive to a reasonable person."
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 small unmanned aircrafts can be flown only subject to certain operational rules, and that the pilot must be registered. (See 14 C.F.R. Part 107.) For example, pilots can't fly recklessly, or drop anything from the drone, or fly them above 400 feet.
These regulations do not, however, apply to "model" aircraft. That means drones that are capable of sustained flight; are flown within visual line of sight of the person operating them; and are being used for hobby or recreational purposes. Thus there's a question about what category your neighbor's drone falls into.
In any case, however, even recreational flyers must register themselves and their drone, and must follow certain FAA rules (some of which are still under development.)
If you observe a drone being flown in a way that could be dangerous to people or other aircraft, the FAA advises that you call local law enforcement.
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