Do Community Associations Have the Authority to Regulate Drone Usage on Their Common Area or Common Elements?
By: Kathleen W. Panagis, Esq.
Whether community associations can regulate the usage of drones on their common area or common elements depends first on where the community association is located and second on the authority contained in community associations' recorded governing documents.
Laws and Regulations Applicable to Drone Usage
Drones are technically known as unmanned aerial systems (“UAS”). Other than Federal Aviation Administration (“FAA”) regulations, there are currently no state laws in Virginia, Maryland, or Washington, D.C. that govern the use of drones.
Pursuant to FAA regulations, if a community association is located within a fifteen mile radius of Washington, D.C., such community association is in a no-drone zone and drone usage is prohibited, unless the drone operator has received specific authorization from the FAA.
If a community association is located either between a fifteen to thirty mile radius of Washington, D.C., then the operating a drone for either recreational or non-recreational use is permitted under the following special operating conditions:
• Aircraft must weigh less than 55 lbs. (including any attachments such as a camera);
• Aircraft must be registered and marked;
• Fly below 400 feet;
• Fly within visual line-of-sight;
• Fly in clear weather conditions; and
• Never fly near other aircraft.
If a community association is located outside the thirty mile radius of Washington, D.C., drone usage will be permitted so long as certain conditions are met. The FAA has put forth two sets of rules for such drones: one set that pertains to recreational or hobbyist use, and another set for commercial usage, which are described in detail below.
• Recreational or hobbyist use: (a) The drone must be registered with the FAA and labeled with such FAA registration number if the drone weighs between .55 pounds and less than 55 pounds; (b) drones cannot be more than 55 pounds (55 lbs.); (c) operators must be at least thirteen (13) years old; and (d) the operator must be a U.S. citizen or legal permanent resident. Registration for recreational or hobbyist use costs $5 and is valid for three (3) years.
The FAA safety guidelines for recreational use of drones are as follows:
o Fly at or below 400 feet;
o Keep the drone within sight;
o Never fly near other aircraft, especially near airports;
o Must fly no less than 5 miles from airports;
o Never fly over groups of people;
o Never fly over stadiums or sports events;
o Never fly near emergency response efforts such as fires;
o Never fly under the influence; and
o Be aware of airspace requirements.
• Commercial use: Drones for commercial usage are more regulated. Commercial usage is considered as in the “furtherance of a business purpose.” All businesses operating small drones must comply with the FAA's rules such as (a) the operator must be at least sixteen (16) years old; (b) the operator must pass an initial aeronautical acknowledge test at an FAA-approved knowledge testing center; (c) the operator must be vetted by the Transportation Safety Administration; (d) the drone must be less than fifty-five pounds (55 lbs.), and (e) the drone must be registered.
The additional operating rules for commercial use drones are as follows:
o Class G airspace*;
o Must keep the aircraft in sight (visual line-of-sight)*;
o Must fly under 400 feet*
o Must fly during the day*;
o Must fly at or below 100 mph*;
o Must yield right of way to manned aircraft*;
o Must not fly over people*; and
o Must not fly from a moving vehicle*
* All of these rules are subject to waiver by the FAA
Whether an Association has the Authority to Regulate Drone Usage
If a community association is either located within a fifteen to thirty mile radius of Washington, D.C. or is located outside the thirty mile radius of Washington, D.C., an association's authority to regulate drone usage on its common area or common elements is based on the same authority an association relies on to regulate other activities on its common area and common elements. Any rules and regulations promulgated by an association are, of course, in addition to any and all requirements put forth by the FAA as discussed above.
Typically, an association's declaration (if a property owners' association and sometimes a condominium association) or bylaws (if a condominium association) provides that each person having the right to use the common areas or common elements shall comply with the rules and regulations regarding such use as established by the Board of Directors. The bylaws for associations usually grant the Board the power to adopt rules and regulations necessary for the benefit and enjoyment of the association, and the bylaws also typically provide the Board with the power to operate, care, provide upkeep and maintain the association property. In addition, it is common for bylaws to authorize the board to make and amend rules and regulations governing the common areas and common elements. Lastly, bylaws normally provide that no improper, offensive or unlawful use shall be made of the association property and that all governmental regulations must be followed.
As such, based on the general and oft-typical authority cited above, community associations usually have the power to adopt rules and regulations governing the use of drones on their common areas and common elements—this, of course, always depends on the explicit authority contained in a community association's declaration and/or bylaws. Should a community association have the express authority to regulate drone usage on its common areas or common elements, such rules and regulations must be consistent with the FAA's regulations and should be designed to reasonably address legitimate concerns about the interference that drones represent to other owners' use of the common areas or common elements.
Examples of what types of drone-related rules and regulations community associations may be able to promulgate are (a) all owners, residents, or other persons must receive written consent from the Board of Directors prior to operating a drone on the common areas and common elements; (b) such individuals must also sign an indemnification agreement with the association; (c) the association can also require that all owners, residents, or other persons provide proof of insurance covering the drone; and (d) the same rules and regulations will require the owners, residents, or other persons to comply with all federal and state rules and regulations as well as any county, local or municipal ordinances.