In 2015, the California Legislature enacted two bills, Senate Bill 142 and Senate Bill 856, which take the first steps toward addressing the potential for drones to trespass and invade individuals’ privacy.
Civil Code section 1708.8 was first enacted in the 1990s to allow lawsuits for invasion of privacy against paparazzi, or others, who photograph or record private activity without permission. The law provides, among other things, that a person is liable for physical invasion of privacy by knowingly entering onto the land of another in order to make photographs or sound recordings of private activity without permission. The law establishes special penalties for this invasion of privacy. SB 856, effective January 1, 2016, amends Civil Code section 1708.8 by providing that a person also commits a physical invasion of privacy by entering into the air space above the land of another to photograph or record private events.
SB 142 creates a new Civil Code section 1708.10, stating that use of a drone less than 350 feet above ground level without express authority is a trespass. Now, drone operators are subject to civil lawsuits if they fly at less than 350 feet above private property.
The Federal Aviation Administration (FAA), which has jurisdiction over all airspace, also regulates when, where, and how a drone may be operated. As of December 21, 2015, recreational drone users are required to register with the FAA.
Can an association establish reasonable regulations on the use of drones within the project? Probably, yes, within the limits of the rulemaking power in the governing documents. Can an Association prohibit the use of drones altogether, by way of a rule? It is tempting to say yes, but federal regulations may be found to supersede, or “preempt,” both local laws and association rules. To avoid this problem, associations may consider rules controlling the effect of drone use, based on the nuisance provisions of the CC&Rs. For example, rules might prohibit using drones to look into other residents’ private yards or windows, or to harass or annoy others.
John R. MacDowell, Esq. is managing shareholder of Fiore, Racobs & Powers’ Orange County office and is a delegate to CLAC from the Orange County Regional Chapter of CAI. He serves as Vice-Chair for CLAC.