Not Just Droning on About Nothing: Drones and Trespass to Property.

Real Estate Law

When we think about trespass to real property, lot lines and fence lines or people walking across land are the first things that come to mind.

We do not often think about objects invading the air space above real property as constituting a trespass to property.

But they can be.

How can that be?

It is possible because you do not just own the land your home sits on.

Although you no longer own your real property all the way “from heaven to hell” as you once did under the common law, you do still own a portion of the airspace above your property and a portion below it.

As a result, trespass to property does not just exist in those cases where someone enters your land without your permission or won’t leave when you ask them to.

Trespass can also be the result of the invasion of your airspace. For example, if your neighbor’s trees hang over the property line, that is technically a “trespass.” Likewise, if someone were to throw a ball into your yard, that would constitute a technical trespass. (Note: although technically it may constitute a trespass, unless you can prove damage, it would not be actionable.)

In today’s age of modern technology, the flying of Unmanned Aircraft Systems, more commonly known as “drones,” over your property can, in some states, constitute a trespass to property.

Unlike airplanes, drones fly quite low —generally under 400 feet.

And they are almost always used for data collection. Thus, the flying of drones over private property raises legal issues of trespass and privacy rights.

As will be described more fully below, the federal government regulates all aircraft and has exclusive jurisdiction over all airspace in the U.S. However, each state in the nation has the authority to regulate a property owner’s airspace. With the rise in the use of drones, many states have been regulating drone technology. According to the National Conference of State Legislators, as early as 2013, thirteen (13) states had adopted drone laws.

Georgia was one of 18 states that enacted bills related to drone regulation in 2019.

So, the first place you may want to look to determine whether a drone flying over your real property constitutes a trespass to property is your state and local laws.

Regulation of Drones in Georgia

The Federal Aviation Authority (FAA) has exclusive jurisdiction over all “navigable airspace within the United States. Anyone using that airspace is subject to federal regulations—no matter how low or how high he/she is flying.

The states, however, may enact laws regulating drones that are not inconsistent with federal laws.

In Georgia, drones are allowed to be used for recreational and commercial use —subject, of course, to compliance with all FAA restrictions. Drones may also be subject to regulation by local and municipal governments. They may not, however, be used to commit crimes or deliver contraband to correctional facilities or to photograph correctional facilities.

But Do You Have a Claim for Trespass if a Drone Flies Over Your Property?

As is often the case in law, the answer to this question is “it depends” and “you will need to consult with your attorney.”

Why?

Because this area of law has many conflicting and competing laws that must be considered: the FFA’s exclusive jurisdiction over all navigable airspace, state and local laws regulating drone technology, and private property rights.

Sorting through all of that requires careful analysis of the facts of your specific situation and all applicable laws.

So the upshot is, if you feel you may have a case of harassment or invasion of privacy or trespass due to drone flights over your property, consult experienced real estate counsel.

 Our Experience is Your Advantage.

At the Law Offices of Mark Weinstein, P.C., our clients benefit from our experience. We have extensive experience in real estate law. We have offices in Cumming, and we serve clients in Atlanta, Gainesville, Gwinnett County, Bartow County, Hall County, Henry County, Cherokee County, Clayton County, Cobb County, and other counties throughout Georgia. To find out what we can do for you, call us today at: 770-888-7707. Or you can e-mail us with inquiries at: lawofficesofmarkweinstein@gmail.com

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