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NextDoor and HOAs..can they?

Paul Stocum

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I perused a few threads and didn't really see an answer to my question, so please forgive if I'm being redundant (again).

Today our Nextdoor App popped up with this thread.

Screenshot 2022-12-29 at 4.32.40 PM.png

As you see there are already 82 comments. The majority response is "shoot it down" "It's illegal" etc. I
stated federal law and potential penalties if caught shooting at an aircraft which includes drones. And of course I get replies of BS, invasion of privacy, I can protect my house yada yada. Same 'ol rhetoric every time a drone is mentioned. In the past I have professionally attempted educate in simple terms what a drone would be doing if it were flying/shooting for real estate..hovering over other properties for a few minutes to capture different angles.

My question comes from an exchange with someone who said he was a Part 107 license holder, he mentioned that some HOAs have restrictions and you may need to get permission. The question is, can an HOA regulate airspace? As a Pt 107 myself, I shoot for real estate quite a bit. If HOA can regulate, I figure I'm okay (initially) unless there is a sign clearly posted or (until) security of sorts approaches and informs me. To further confuse the issue, 2 separate people claiming to be ex FAA air traffic controllers contradicted each other on HOA's ability to regulate.
 
You pose an interesting question. As a board member of a similar association I can possibly provide some perpective. But a lot depends on the individual states in which the HOA is located as well as the drone laws of the given state.

From a legal standpoint of flight, as I'm sure you know, the FAA controls the airspace so consequently the controversy in many cases of all kinds depends largely of launch and land positions. It gets a bit trickier when shooting for a real estate sale gets involved and the HOA has very strict restrictions. But in a real estate case involving propery in a HOA it would seem to me that the issue would be between the HOA and the propery owner, not the drone pilot though, depending on the prevailing laws might involve both. It would also seem clear that if real estate drone footage was needed in a HOA restricted are, the home owner would appeal to the board of directors of the HOA for an exception. It would seem reasonable for the HOA to grant such exception. But I've seen situations where HOA's sometimes have an unexplained unreasonableness to decisions.

I would think that if I were shooting in an HOA area that would not grant the homeowner an exception to their rule, I would seek to get the homeowner to cover any costs I might incur (which would probably be none) for flying in the area. The HOA couldn't fine me and the FAA probably wouldn't get involved. State or local authorities probably wouldn't want to get involved either. The one thing an HOA has is almost unbridled power to fine for violations of pretty much any kind. However, if one was selling property, a typical fine for such a violation would be considered the cost of doing busines as they're probably already paying 6% to the realtor plus taxes and fees on the sale transaction. If the shoot gets fined while it sells the house for a proper amount the fine is pocket change.
 
It depends on the HOA and who owns the the property. If the HOA owns the property it is private and the HOA would be able to restrict you from entering ONTO the property.
Of course many more details are needed about your presumptions and the rules of the HOA.
 
The hovering over the hot tub and looking into windows is probably illegal under Peeping Tom laws. There is a"Reasonable expectation of privacy" in both cases. The HOA may or may not have "legal jurisdiction" over the pilot location of a drone. More than likely, they were being flown from the pilot's home yard. The HOA does NOT control airspace!!
 
The question is, can an HOA regulate airspace?

Nevada has unique set of UAV and aerial trespass laws. I excerpted most important sections below.

My quick take is an HOA can limit your right to engage in activities that a government entity could not because when you buy the property its subject to CC&Rs.

But, regardless of any HOA, any resident in the neighborhood could cause you grief under Nevada state law which is one of the few which purports to prohibit aerial trespass by drone at less than 250 feet after one warning. But, there are important exceptions including huge carve out or safe harbor for 107 licensed pilot who is conducting legit flight for business and is not pestering anyone on ground.

TITLE 44 - AERONAUTICS

CHAPTER 493 - GENERAL PROVISIONS

NRS: CHAPTER 493 - GENERAL PROVISIONS

NRS 493.040  Ownership of space.  The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in NRS 493.050.

NRS 493.050  Lawfulness of flight and landing; liability for forced landing.

1.  Flight of an aircraft over the lands and waters of this state is lawful:

(a) Unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner.
(b) Unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.
(c) Unless specifically prohibited by the provisions of NRS 493.010 to 493.120, inclusive, or any regulations adopted pursuant thereto.

2.  The landing of an aircraft on the lands or waters of another, without his or her consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, the owner, lessee or operator of the aircraft is liable as provided in NRS 493.060.

NRS 493.103  Unmanned aerial vehicles: Action for trespass against owner or operator; exceptions; award of treble damages for injury to person or property; award of attorney’s fees and costs and injunctive relief.

1.  Except as otherwise provided in subsection 2, a person who owns or lawfully occupies real property in this State may bring an action for trespass against the owner or operator of an unmanned aerial vehicle that is flown at a height of less than 250 feet over the property if:

(a) The owner or operator of the unmanned aerial vehicle has flown the unmanned aerial vehicle over the property at a height of less than 250 feet on at least one previous occasion; and

(b) The person who owns or occupies the real property notified the owner or operator of the unmanned aerial vehicle that the person did not authorize the flight of the unmanned aerial vehicle over the property at a height of less than 250 feet.
For the purposes of this paragraph, a person may place the owner or operator of an unmanned aerial vehicle on notice in the manner prescribed in subsection 2 of NRS 207.200.

2.  A person may not bring an action pursuant to subsection 1 if:

(a) The unmanned aerial vehicle is lawfully in the flight path for landing at an airport, airfield or runway.
(b) The unmanned aerial vehicle is in the process of taking off or landing.
(c) The unmanned aerial vehicle was under the lawful operation of:
(1) A law enforcement agency in accordance with NRS 493.112.
(2) A public agency in accordance with NRS 493.115.

(d) The unmanned aerial vehicle was under the lawful operation of a business registered in this State or a land surveyor if:

(1) The operator is licensed or otherwise approved to operate the unmanned aerial vehicle by the Federal Aviation Administration;

(2) The unmanned aerial vehicle is being operated within the scope of the lawful activities of the business or surveyor; and

(3) The operation of the unmanned aerial vehicle does not unreasonably interfere with the existing use of the real property.


3.  A plaintiff who prevails in an action for trespass brought pursuant to subsection 1 is entitled to recover treble damages for any injury to the person or the real property as the result of the trespass. In addition to the recovery of damages pursuant to this subsection, a plaintiff may be awarded reasonable attorney’s fees and costs and injunctive relief.
 
Presumably the HOA thing is about homeowners using their property to launch/land. I guess if a HOA forbade it or other "nuisances" that drone flying might qualify as, they could serve a homeowner with a notice to stop with the threat of a fine or some other sanction, same as playing music too loud or not mowing their lawn, or setting off fireworks, or whatever that HOA's particular bugaboo is. If the drone isn't being launched from HOA property or owned by a homeowner in the HOA (even if a homeowner launched from outside the neighborhood, the HOA would probably still feel empowered to serve a notice, rightly or wrongly), then I fail to see how the HOA would have any authority whatsoever. The proper recourse in this situation would seem to be calling the police and they can try and find the owner and have a chat about whether this qualifies as a peeping-tom incident or whatever.
 
  • Like
Reactions: SmilingOgre
I perused a few threads and didn't really see an answer to my question, so please forgive if I'm being redundant (again).

Today our Nextdoor App popped up with this thread.

View attachment 158827

As you see there are already 82 comments. The majority response is "shoot it down" "It's illegal" etc. I
stated federal law and potential penalties if caught shooting at an aircraft which includes drones. And of course I get replies of BS, invasion of privacy, I can protect my house yada yada. Same 'ol rhetoric every time a drone is mentioned. In the past I have professionally attempted educate in simple terms what a drone would be doing if it were flying/shooting for real estate..hovering over other properties for a few minutes to capture different angles.

My question comes from an exchange with someone who said he was a Part 107 license holder, he mentioned that some HOAs have restrictions and you may need to get permission. The question is, can an HOA regulate airspace? As a Pt 107 myself, I shoot for real estate quite a bit. If HOA can regulate, I figure I'm okay (initially) unless there is a sign clearly posted or (until) security of sorts approaches and informs me. To further confuse the issue, 2 separate people claiming to be ex FAA air traffic controllers contradicted each other on HOA's ability to regulate.
An HOA that governs the property can certainly regulate your drone operation if you are conducting it from their property. The worst they can really do is ask you to stop and then ask you to leave the property. My guess is most any HOA would grant you permission to film homes in the community that you are selling.
 
  • Like
Reactions: SmilingOgre
I perused a few threads and didn't really see an answer to my question, so please forgive if I'm being redundant (again).

Today our Nextdoor App popped up with this thread.

View attachment 158827

As you see there are already 82 comments. The majority response is "shoot it down" "It's illegal" etc. I
stated federal law and potential penalties if caught shooting at an aircraft which includes drones. And of course I get replies of BS, invasion of privacy, I can protect my house yada yada. Same 'ol rhetoric every time a drone is mentioned. In the past I have professionally attempted educate in simple terms what a drone would be doing if it were flying/shooting for real estate..hovering over other properties for a few minutes to capture different angles.

My question comes from an exchange with someone who said he was a Part 107 license holder, he mentioned that some HOAs have restrictions and you may need to get permission. The question is, can an HOA regulate airspace? As a Pt 107 myself, I shoot for real estate quite a bit. If HOA can regulate, I figure I'm okay (initially) unless there is a sign clearly posted or (until) security of sorts approaches and informs me. To further confuse the issue, 2 separate people claiming to be ex FAA air traffic controllers contradicted each other on HOA's ability to regulate.
First impression is that you are on social media. Social media is a natural breeding ground for those with many character defects often involving emotional instability. I personally avoid these cesspools of argument for the sake of argument. Simply reading the comments, one might get a sense of how drone friendly an area is and assist in the decision if one wants to fly there or not. Legal or no, these little power brokers can cause a lot of grief and to be simply not involved can avoid all of that. While as drone pilots most of us know what the law is, one has to question the efficacy of challenging a rabid mob in an attempt to educate. Rabid mobs most often have no interest in education.
 
The question is, can an HOA regulate airspace?

Nevada has unique set of UAV and aerial trespass laws. I excerpted most important sections below.

My quick take is an HOA can limit your right to engage in activities that a government entity could not because when you buy the property its subject to CC&Rs.

But, regardless of any HOA, any resident in the neighborhood could cause you grief under Nevada state law which is one of the few which purports to prohibit aerial trespass by drone at less than 250 feet after one warning. But, there are important exceptions including huge carve out or safe harbor for 107 licensed pilot who is conducting legit flight for business and is not pestering anyone on ground.

TITLE 44 - AERONAUTICS

CHAPTER 493 - GENERAL PROVISIONS

NRS: CHAPTER 493 - GENERAL PROVISIONS

NRS 493.040  Ownership of space.  The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in NRS 493.050.

NRS 493.050  Lawfulness of flight and landing; liability for forced landing.

1.  Flight of an aircraft over the lands and waters of this state is lawful:

(a) Unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner.
(b) Unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.
(c) Unless specifically prohibited by the provisions of NRS 493.010 to 493.120, inclusive, or any regulations adopted pursuant thereto.

2.  The landing of an aircraft on the lands or waters of another, without his or her consent, is unlawful, except in the case of a forced landing. For damages caused by a forced landing, the owner, lessee or operator of the aircraft is liable as provided in NRS 493.060.

NRS 493.103  Unmanned aerial vehicles: Action for trespass against owner or operator; exceptions; award of treble damages for injury to person or property; award of attorney’s fees and costs and injunctive relief.

1.  Except as otherwise provided in subsection 2, a person who owns or lawfully occupies real property in this State may bring an action for trespass against the owner or operator of an unmanned aerial vehicle that is flown at a height of less than 250 feet over the property if:

(a) The owner or operator of the unmanned aerial vehicle has flown the unmanned aerial vehicle over the property at a height of less than 250 feet on at least one previous occasion; and

(b) The person who owns or occupies the real property notified the owner or operator of the unmanned aerial vehicle that the person did not authorize the flight of the unmanned aerial vehicle over the property at a height of less than 250 feet.
For the purposes of this paragraph, a person may place the owner or operator of an unmanned aerial vehicle on notice in the manner prescribed in subsection 2 of NRS 207.200.

2.  A person may not bring an action pursuant to subsection 1 if:

(a) The unmanned aerial vehicle is lawfully in the flight path for landing at an airport, airfield or runway.
(b) The unmanned aerial vehicle is in the process of taking off or landing.
(c) The unmanned aerial vehicle was under the lawful operation of:
(1) A law enforcement agency in accordance with NRS 493.112.
(2) A public agency in accordance with NRS 493.115.

(d) The unmanned aerial vehicle was under the lawful operation of a business registered in this State or a land surveyor if:

(1) The operator is licensed or otherwise approved to operate the unmanned aerial vehicle by the Federal Aviation Administration;

(2) The unmanned aerial vehicle is being operated within the scope of the lawful activities of the business or surveyor; and

(3) The operation of the unmanned aerial vehicle does not unreasonably interfere with the existing use of the real property.


3.  A plaintiff who prevails in an action for trespass brought pursuant to subsection 1 is entitled to recover treble damages for any injury to the person or the real property as the result of the trespass. In addition to the recovery of damages pursuant to this subsection, a plaintiff may be awarded reasonable attorney’s fees and costs and injunctive relief.
FYI, this Nevada law has only been used once to my knowledge, and was thrown out by the judge as preempted.

If anyone were to challenge this in court, Nevada would lose. NRS 493.103 (1) is preempted by the FAA's sole authority to regulate the NAS. I was discussing this with the writer of the bill. It was just before one of the Vegas drone conventions. I said I'd like to stop by his office and talk with him about it, and he ghosted me. Up until then it was a pleasant conversation.
 
My take would be that while the HOA does NOT control air space they do control the signed agreements between homeowners and HOA entity. Which, could very well prevent TO/L from homeowner/HOA real property without HOA permission. If streets within the HOA are public streets (meaning not a gated community and/or maintained by public utilities) then I would say TO/L is a municipality issue, not HOA.
This statement implies no legal advice!

Bear in mind, I only watch movies with lawyers in them, I have yet to privately hire one!
 
FYI, this Nevada law has only been used once to my knowledge, and was thrown out by the judge as preempted.

If anyone were to challenge this in court, Nevada would lose. NRS 493.103 (1) is preempted by the FAA's sole authority to regulate the NAS. I was discussing this with the writer of the bill. It was just before one of the Vegas drone conventions. I said I'd like to stop by his office and talk with him about it, and he ghosted me. Up until then it was a pleasant conversation.
Ya called him on it, Vic. He turned tail ‘cause he knew he would not be able to legally support the cause!
 
First impression is that you are on social media. Social media is a natural breeding ground for those with many character defects often involving emotional instability. I personally avoid these cesspools of argument for the sake of argument. Simply reading the comments, one might get a sense of how drone friendly an area is and assist in the decision if one wants to fly there or not. Legal or no, these little power brokers can cause a lot of grief and to be simply not involved can avoid all of that. While as drone pilots most of us know what the law is, one has to question the efficacy of challenging a rabid mob in an attempt to educate. Rabid mobs most often have no interest in education.
Well put.

The bottom line: An HOA does not own the airspace above its common areas or homeowners property. The “reasonable expectation to privacy” mentioned above, applies to inside your private property. Outside of that, there’s not a legal “expectation of privacy” in an open, public place. The all too often problem is drone operators that intentionally fly over other’s private property, obviously observing hot tubs/swimming pools, or peering in windows. The inconsiderate things more rules and regulations are made of that affect all of us.

The “drone stigma” that some have with regard to observing from above is negated by the fact that the same drone operator can be flying an airplane at a legal altitude and take the same photographs. In both instances, the subject being photographed or observed would never know the difference. But, a drone overhead will illicit a completely different reaction.

All in the perception of what people see and are influenced by. That is why it’s so important to fly both the drone and airplane in a safe and considerate way, or else.
 
I think it has been pretty well nailed here except for some disagreement on whether peeping tom stuff like described is illegal and I'm not a lawyer. I do know that in -some- states such an action would be illegal due to the privacy issue or in some states it is the issue that such invasive drone use would deprive the home owner of the unfettered use of their home. Either way, those are the kinds of areas that would potentially make that kind of action illegal, not the simple flight itself. As has been pointed out, neither the HOA nor city has anything to say about the flight although it might be able to make rules about whether you can launch a drone.
 
The hovering over the hot tub and looking into windows is probably illegal under Peeping Tom laws. There is a"Reasonable expectation of privacy" in both cases. The HOA may or may not have "legal jurisdiction" over the pilot location of a drone. More than likely, they were being flown from the pilot's home yard. The HOA does NOT control airspace!!
I question the “peeping” aspect of the posters claim. While it could be true, in all likelihood it could have been a real estate operation capturing a neighboring house. If the drone was hovering just above their second story roof, it would be at about 50’. Not exactly a position/height to get good “pervy” look at at you. And the poster has no way of knowing if the drone was recording (as claimed).

People are so quick to think the worst, especially in a community that breeds so much discontent towards drone operation.
 
Ask the government and they say well that's private property we can't do whatever it is.
So why do I see police cruisers sitting on private property with their speed radar gun, and not really sure which speed reading goes to which car and then proceed to give out green stamps? Since they are doing that commercially, and not recreationally, they should have to show their part 107 traffic ticket giving license. And whether their cruiser and speed gun have been registered for only $5. Shouldn't they be trying to sit in the middle of the road where they have that public/government owned thing going on and blocking traffic at the same time?
 
I question the “peeping” aspect of the posters claim. While it could be true, in all likelihood it could have been a real estate operation capturing a neighboring house. If the drone was hovering just above their second story roof, it would be at about 50’. Not exactly a position/height to get good “pervy” look at at you. And the poster has no way of knowing if the drone was recording (as claimed).

People are so quick to think the worst, especially in a community that breeds so much discontent towards drone operation.
And I have friends who had the "looking in the window" happen to them on vacation this summer, on their 20th floor hotel. That is illegal in most places.
 
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