Can REALTORS® Use Drones To Photograph Listings?
November 21, 2014
By Christopher J. Charles, Esq.
If drone manufacturers have it their way, drones will soon be as commonplace as iPhones. Domino’s wants to use drones to deliver pizzas; Amazon wants to use drones to deliver books; and UPS could use drones to deliver mail. I recently attended a wedding in Del Mar, California, that included 78 degree weather, ocean-blue skies, fireworks, a U2 cover band, and drones (for the photography). The Apple store sells drones for as little as $99 that can be operated from any smart phone or tablet.
Realtors have earned the reputation for being tech savvy and on the cutting edge of integrating the latest and greatest technology to better serve their clients. That’s why it should be no surprise that realtors were among the first to embrace drone technology to improve their services. Many agents are already using drones to capture unique and unmatched images of their listings.
Drones can be useful to realtors and their clients but their use is currently prohibited. The Federal Aviation Administration governs all aircraft within the United States, including unmanned aircraft, regardless of whether the operation is for recreational, hobby, business, or commercial purposes. 49 U.S.C. § 40102(a)(6) and 14 C.F.R. § 1.1. Section 40102(a)(6) defines an aircraft as “any contrivance invented, used, or designed to navigate or fly in the air.”
The FAA’s regulations (14 C.F.R. § 1.1.) similarly define an aircraft as “a device that is used or intended to be used for flight in the air.” Because an unmanned aircraft is a contrivance/device that is invented, used, and designed to fly in the air, an unmanned aircraft is an aircraft based on the unambiguous language in the FAA’s statute and regulations.
In addition, Public Law 112-95, Section 331(6),(8), and (9) expressly defines the terms “small unmanned aircraft,” “unmanned aircraft,” and “unmanned aircraft system” as aircraft. Model aircraft are also defined as “aircraft” per Public Law 112-95, section 336(c).
Further, the FAA is responsible for air safety from the ground up. Under 49 U.S.C. § 40103(b)(2), the FAA has broad authority to prescribe regulations to protect individuals and property on the ground and to prevent collisions between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.
Consistent with its authority, the FAA presently has regulations that apply to the operation of all aircraft, whether manned or unmanned, and irrespective of the altitude at which the aircraft is operating. For example, 14 C.F.R. § 91.13 prohibits any person from operating an aircraft in a careless or reckless manner so as to endanger the life or property of another.
The FAA currently prohibits the use of drones for any commercial purpose. In June, the FAA issued its official statement declaring that “a realtor using a model aircraft to photograph a property that he or she is trying to sell and using the photos in the property’s real estate listing does not constitute hobby or recreational use.” In other words, under current law, realtors can’t use drones to photograph their listings.
And the FAA is actively hunting realtors and sellers who use drones: earlier this year the FAA sent subpoenas to a handful of brokerages in New York. No known fines have been issued yet but hefty fines are possible for anyone who violates the above codes.
The National Association of Realtors is actively engaged in the evolving discussion on drones. In fact, the FAA recently invited NAR to participate in its ongoing think tank addressing the use of drones. According to NAR’s website, “NAR will use the opportunity to educate FAA officials on how realtors are interested in utilizing this technology safely and responsibly.”
Proposed regulations would authorize small drones into the national airspace before the end of this year. “NAR supports regulations that would allow its realtor to use drones safely but that are not overly cumbersome or expensive.”