Drones: Regulation Under State and Federal Law, and Controlling Via a Community’s Governing Documents

Unmanned aircrafts, commonly known as drones, are becoming increasingly popular both for recreational and business uses. Technological advancements have increased those potential uses and brought the costs down. Given the popularity, constant technological advancements and the potential risks and dangers, it is important for community associations to be proactive in addressing potential issues before they become real problems. This article will provide a brief review of recent legislation and some insight into a community association’s rights.

Michigan Regulation

Effective April 4, 2017, Michigan enacted the Unmanned Aircraft Systems Act (the “Act”) which addresses the operation and regulation of unmanned aircrafts (a/k/a drones). An “unmanned aircraft” under the Act is defined as “an aircraft flown by a remote pilot via a ground control system, or autonomously through use of an on-board computer, communication links, and any additional equipment that is necessary for the unmanned aircraft to operate safely.” (MCL 259.303(d)) Additionally, an “unmanned aircraft system” expands upon the definition to include all of the associated support equipment and other equipment necessary to operate the unmanned aircraft.

Section 21 of the Act prohibits the use of an unmanned aircraft in a manner that interferes with the official duties of a police officer, firefighter, paramedic or search and rescue personnel. Section 22 of the Act prohibits the use of an unmanned aircraft if the purpose is harassment, in violation of a restraining order or if the use invades upon a person’s reasonable expectation of privacy. Violations of Section 21 or 22 are misdemeanors punishable by imprisonment up to 90 days or a fine of not more than $500.00, or both.

The Act does not otherwise provide any specific regulations on the use of unmanned aircrafts rather the Act references the relevant Federal Laws.

Federal Regulation

The Federal Aviation Administration (“FAA”) has adopted rules which govern the operation and use of unmanned aircrafts. An unmanned aircraft under the federal regulations is an “aircraft operated without the possibility of direct human intervention from within or on the aircraft.” The rules apply to unmanned aircrafts that weigh between .55 lbs and 55 lbs, including all equipment that is attached to the aircraft. If the use of the unmanned aircraft is purely for hobby or recreation, there are two options for legal operation. Under the first option the operator must follow any community-based guidelines, fly within the operator’s visual line of sight, give way to any manned aircraft, provide prior notification to air traffic control if flying within 5 miles of an airport and must register the aircraft through the FAA.The second option requires the operator to obtain a remote pilot certificate or be under the direct supervision of someone who has a certificate, register the aircraft with the FAA as a non-modeler and must follow all of the below guidelines that would otherwise apply to commercial use of an unmanned aircraft (most of these guidelines may be waived if a request is submitted to the FAA):

Must remain within the visual line of sight of the operator without the aid of any device aside from corrective lenses; May not operate over any person not directly participating in the operation, under any covered structure or within any covered stationary vehicle; May only operate during daylight hours or 30 minutes before or after sunset if the Unmanned Aircraft has anti-collision lighting; Must yield to other aircrafts; May not exceed 100 MPH; May not fly more than 400 ft above ground level (or higher if within 400 ft of a structure); Must have minimum weather visibility of 3 miles from the control station; Depending on the airspace classification the use may require permission from air traffic control if within 5 miles of an airport; May not operate more than one Unmanned Aircraft at a time; May not operate from a moving vehicle unless in a sparsely populated area; and May not operate in a careless or reckless manner and may not carry hazardous materials.

Controlling Drone Use Within the Community

Many recorded Declarations and Bylaws do not address use of drones. However, in a Condominium, the Board of Directors has the power to adopt rules relating to the use of the Common Elements. In an attached Condominium, because the entire exterior of the Condominium is comprised of Common Elements, the Board generally can control the use of drones, and can ban if desired, via the adoption of rules. In a site Condominium, the Board’s ability to control the use of drones upon the Common Elements will be the same as with an attached development, but regulation within the Unit will depend on the specific provisions contained in the Condominium Bylaws.

In a subdivision, if the recorded restrictions do not directly address the use of drones, whether the Board can control the use of drones via rule will depend on the restriction provisions. Unlike condominiums, where the Michigan Condominium Act specifically provides for a board’s right to enact rules and regulations (see MCL 559.206), there is no State statute that grants a subdivision association board the automatic right to do the same.

Any board-adopted rule would not apply to a non-resident that is flying an unmanned aircraft from outside of the Association’s property; however, in that event it may be considered a trespass and could be dealt with accordingly.

As mentioned above, in Michigan violations of a person’s reasonable expectation of privacy, harassment or interference with certain official duties are misdemeanors and should be addressed by the appropriate law enforcement agency.

Evan M. Alexander is a Michigan Condominium Attorney and an associate at Makower Abbate Guerra Wegner Vollmer PLLC. Mr. Alexander focuses his practice primarily in the areas of Michigan Condominium Association and Michigan Homeowner Association law. Mr. Alexander is a member of the Young Lawyers section of the State Bar of Michigan.