What if you don’t want drones flying over your private property? Many people wouldn’t want this. Are you able to restrict drone pilots from flying over your house or using the aerospace over your land?
Are drones even allowed to fly over private property?
Where do the rights of owners of private properties end as concerns the air above them?
Are Drones Allowed to Fly Over Private Property?
There used to be a simple answer to this, back when what lay in the sky above were clouds, birds, and the odd cannon ball during times of conflict.
Back then, English Common law took a straightforward method to decide a land owner’s rights to the air above his property. The landlord was the lordof the property “all the way to heaven and to hell below”.
This law was adopted by almost all countries with major English ancestry, such as Australia and the UK, and held sway until airplanes came into the picture.
Today, with the rise of airplanes as one of the major forms of travel, the law has been modified to accommodate the flying public and private landowners.
Today what is generally enforced is that:
- The airspace that can be occupied or used by a landowner must be his, and
- The landowner is due a “buffer zone” to protect the owner from intrusions that would limit their full enjoyment of the property or hinder their ability to exploit it.
Different countries interpret these concessions differently to come up with their own laws dealing with the issue of drone trespass.
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Drone Laws for Flying over Private Property in the US
According to federal law (The Air Commerce Act), the US government has exclusive control over “navigable airspace”.
The Federal Aviation Administration (FAA), which controls navigable airspace, defines it as the air above the lowest altitude at which an aeroplane flight is sanctioned. Depending on the area, this ranges from 500 to 1000 feet, and is regarded as the air space through which the public has a right of transit.
It also includes air space needed for landing and takeoff.
State laws also influence how air space a landowner controls.
For example, a landowner generally is within his rights if he removes branches from a neighbor’s yard that overhangs across the boundary into his property. The overhand is considered trespassing.
Likewise, an owner may consider a hunter to have trespassed if they let loose a shot that crossed into the private property.
State laws even extend to restrictions enforcing building heights and prohibiting view obstruction. And some states have outlawed drones flying over private property outright.
For a more in depth explanation of a state’s drone laws, check out the National Association of State Legislatures’ website where they have a compendium, Current Unmanned Aircraft State Law Landscape.
But the FAA retains the final word over navigable space, and all that use it. In fact, the FAA insists it holds fief over aircrafts and drones operating at any height—including below navigable space.
So is it trespassing when a drone flies over your private property?
And so you can that there are no easy answers, as state and federal laws can clash.
While landowners have rights to some of the air above their property, the FAA lays claim to what lies below, and within, the navigable airspace.
When you consider that state laws exist which make drone flight above private property an occasion of trespass, you can easily see problematic scenarios cropping up.
For example, imagine the FAA issues a permit to a company to deliver goods by UAV. Now suppose that these deliveries involve passive private property. If the state bans the trespass by UAVs over private property, what happens should a land owner complain about trespass?
The only hopes for a simple answer arise when a landowner notices a drone pilot flying beneath the federally accepted level without FAA approval.
The landowner would have an even stronger case for trespass if the state laws have clear limits on drone operations.
Drone Laws for Flying over Private Property in the UK
According to drone laws put in place by the Civil Aviation Authority (CAA), drones must be flown at least 5o meters away from a person, vehicle, building, or structure not owned or controlled by the drone pilot.
What does this mean for landowners in the UK?
It means that any drone that is flying more than 50 meters above your private property is ordinarily not breaking drone trespass laws.
However, the case is different if you as a landowner have not been briefed about drone flights over your property and you notice one flying within 50 meters of said property.
Also, organizations need permission from landowners to record, collect, or hold personal data gotten while flying over private property in the UK.
And individuals have the right to access their data, receive a copy of their data, and request to have their data removed.
Privacy laws in the UK also insist that individuals are entitled to not be photographed or filmed in any place they have a reasonable expectation of privacy. This pertains to private land.
But it can be difficult to tell where a drone camera is pointing if the pilot happens to be flying it 60 meters over your property which they have the right to do.
Drone Laws for Flying Over Private Property in Australia
According to Australia’s privacy watchdog (The Privacy Commissioner) drones operated by individuals in Australia do not have to obey privacy laws.
In fact, Australia’s Privacy Act of 1988 does not apply to individual drone pilots because they are not government entities. The Privacy Act does not also apply to individuals or organizations that make less than three million Australian dollars per year.
Thus, the usual restrictions meant to protect the privacy of individuals do not apply to private individuals, small businesses, or media.
It is also worth noting that Australia’s Civil Aviation Safety Authority deals solely with enforcing safety rules. They are not concerned with regulating drones that fly over private property.
That said, it is possible for a drone flight over your house to constitute trespass.
Unlike other types of civil disputes or torts in Australia, a landowner can claim trespass without having to demonstrate that they have suffered a loss or damage because of any action by the drone or its operator.
A case of trespass involves an interference with your rights to private enjoyment to land which you own. And to prove a drone trespassed, you would have to prove the following:
You would have to prove that you are living or staying on land that you are lawfully able to prevent other people from entering. Such exclusive possession extends to owners, renters, and boarders. But it excludes public spaces like the park next to your private house.
You would have to prove that the space above and below the private property was tresspassed. Therefore, a drone that repeatedly flies over your private property can be accused of tresspassing unless it flies so high that it is not noticeable.
Intentional or Negligent
You would have to prove that the interference was either deliberate or due to carelessness (meaning the drone pilot was negligent). This would depend on how the landowner observes and interprets the actions of the drone operator.
You would have to prove that the interference was directly caused by the drone flying over the private property, and not by something else. You also have to prove that the interference was unreasonable and that it continues to interrupt your normal enjoyment.
What to Do If a Drone Is Flying Over Your House
So what do you do if you realize a pilot has violated your right to quiet enjoyment of your private property and trespassed your land?
Go Speak to the Pilot
A lot of conflicts can be avoided by way of a simple chat. Advisably, wait until the drone is landed safely on the ground before going for a chat. It is illegal and dangerous to engage or distract pilot while their drone is still hovering in the air.
If the pilot is a commercial operator, you want to ask for government permits to make sure they are within their legal rights to use the airspace over your private land. Recreational pilots too would most likely be operating within restrictions of the prevailing drone laws and should be willing to talk things through to clarify any doubts.
Contact the Police
If you would rather not approach the pilot or you simply can’t see who is operating the drone, you can call the police. If the drone is being operated by a commercial pilot, it is likely that they notified the police and other authorities of their flight plans. In this case, the authorities should be able to reassure you when they receive your call. If that happens not to be the case then you can supply them with any details they need with their investigation.
What Not to Do If a Drone Is Flying Over Your House
You can’t shoot a drone down, even if someone did legally get away with doing so. This is dangerous and comes with a potential prison sentence.
It is also not advisable to interfere with a pilot while their drone is still in the air. Wait for the aircraft to be landed before talking with the pilot. When the rotors have stopped and the pilot indicates that you can approach, you can initiate your chat and outline your worries.
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