There’s an altitude limit at which property owners own their airspace. Above that altitude, it’s owned by the federal government. But regardless of altitude, airborne aircraft are always operating under the jurisdiction of the Federal Aviation Administration.
Federal case law first established property owner’s airspace in 1946 as a minimum altitude of 83 feet in a foundational ruling by the U.S. Supreme Court “United States v. Causby, 328 US 266 (1946).” A navigable airspace boundary was later established by Congress as the minimum altitude for aircraft flights – stated as 500 feet above ground level. Property rights laws generally accept altitudes below the minimum navigable airspace as the airspace owned by private property owners.
To be clear, the FAA has jurisdiction over all airspace above the ground where aircraft can operate. However, the FAA does not own the airspace below those altitudes defined as navigable airspace.
What Do I Need to Know as a Drone Pilot?
One lengthy legal analysis suggests drone pilots have the right to fly their drones at 400 feet above private property. As you know, 400 feet is also the maximum altitude that drones may operate (with certain exceptions). Note: I couldn’t verify their 400-feet altitude spec, but offer this resource since it cites some good historical information. Whether you’re using 400 feet or 500 feet, current case law favors the property owner if a claim of trespass is made against the pilot.
Does this mean that if you’re doing commercial photography you’re at risk if your drone flies over an adjacent property? Maybe. However, proving loss of the owner’s “full enjoyment of their land” would be difficult if there’s no evidence of: (1) the drone is causing a nuisance: (2) being flown recklessly; or (3) violating your state’s privacy law. In our experience when flying our drone on commercial jobs, it’s very difficult to avoid flying over a neighbor’s private property. So when we’re on a job, we always have a copy of the owner’s (or agent’s) tasking and fly safe.
I’ve been approached by curious neighbors asking what I’m doing with my drone and have found that by explaining the tasking and showing them the drone’s video display it creates a lot of good will. First, they can see that the drone’s wide-angle camera makes it a poor platform for spying. Second, they think it’s very cool to learn about this kind of technology.
This is also a good time to hand out a business card. Sometimes curious neighbors may have a good question down the road, such as “Can I hire you to photograph my property?”
What About Public Lands, Such as the National Parks?
We covered this question in our blog posted on December 7, 2017 “Everything You Never Wanted To Know About Flying Your Drone in the National Parks.” The NPS Director’s Policy Memo 14-05 stated that aerial drones may not be operated from park property, but may be flown over park property (within the FAA’s Part 107 rules). Apparently, federally-owned land managers defer matters of airspace to the FAA.
Private property owners are within their rights to demand that drone pilots keep their drones away from their property lines. This is a request that responsible drone pilots should respect. Unless a lawful objection has been raised, whenever flying over private property always fly in a safe and professional manner. This will minimize your risk of an unpleasant confrontation and possible legal action.