Imagine a quiet evening on the deck of your new home when—out of nowhere—a noisy drone begins hovering around your property, almost certainly snapping photos or video. It’s like Space Invaders meets Gladys Kravitz. So what do you do?

With the growing popularity of drones or UASs (unmanned aircraft systems) for personal enjoyment and commercial use, including real estate home inspections and delivery services, our clients have been asking if there are any regulations that protect their privacy and sanity from unwanted drones.
 
A Quick History
Prior to the rise of airplanes, a property owner’s rights extended “ad coelom et ad inferos,” which means up to heaven and down to hell. After airplanes took off (pun intended) in popularity, the Federal Aviation Administration determined the vertical curtilage (area) belonging to a property owner is up to 500 feet above the ground. The problem is that drones typically fly below 500 feet.

In June 201, the FAA issued its first rules for use of small, non-hobbyist UAS that weigh less than 55 lbs. The current FAA rules:

• Require operators to keep drones within the operator’s visual line of sight. 
• Prohibit flights over unprotected people on the ground who are not directly participating in the UAS operation.

These rules, however, focused on operation and not property rights. Leaving property owners to look to individual states.

Current Illinois Drone Regulations 
In 2016, the State of Illinois set up a task force to provide oversight and to help create drone rules. The task force provided some guidance as to property rights:

• Private parties and public agencies should obtain permission from the property owner before using said property for landing, operation, or takeoff.
• Private property owners always retain the right to deny drone use over their property.

An operator is liable for the harm done by its drone. A violation of statute via drone carries the same civil/criminal penalties as if violated by the operator. This connection is significant because it allows landowners to seek damages for any harm or injury caused by the operator’s drone.

Those who use drones on the job must be at least 16 years old and have a Remote Pilot Airman Certificate, which requires passing the FAA’s Aeronautical Knowledge Test.

Here’s What You Can do About Drones Now
If a drone is knowingly and willfully operated over your property without consent or remains on your property after being prohibited you may:

1. Bring a criminal trespass action and/or seek injunctive relief
2. Bring a civil tort action for breach of privacy under Illinois common law

Also, if a drone violates any statute, landowners may:

1. Seek damages from the operator for any harm or injury caused by the operator’s drone

Why is Drone Legislation Taking so Long?
The FAA could release new drone laws that supersede any state rules at any time, so it’s likely that Illinois legislator are waiting to see how it shakes out.

As drone use continues to increase, especially in the commercial delivery industry, the wait for a definite set of property guidelines will be interesting to say the least.

Questions? Launch me an email at michael@mhwasserman.com.


Written by Susan Jenks and Oliver J. Murphy for Michael H. Wasserman, P.C.  
Thanks to these sources, where you can learn more:
ISBA: Drones, federal and Illinois law, surveillance and the Fourth Amendment
State of Illinois: Illinois Unmanned Aerial System Oversight Task Force
ICA: What’s Required for Drone Assisted Home Inspections?