“All the Way to Heaven?” Does Drone Flyover Constitute Property Trespass?

By March 5, 2020 Real Estate
“All the Way to Heaven?” Does Drone Flyover Constitute Property Trespass?

One of the cutting-edge issues in property law, one that promises to have an increasing amount of currency in the coming years, is that of drone traffic. More and more people find themselves wondering what it means when a drone passes over their property, and whether they have a claim of trespass against those whose drones pass over their property without their permission.

Many people feel a sense of total ownership over their property—the land it constitutes, the dirt beneath it, and the airspace above it. This concept of property doesn’t come out of nowhere—it is rooted deep in Western history. In the Thirteenth Century the glossator Accursius reputedly coined the Latin phrase, “Cuius est solum, eius est usque ad coelum et ad inferos.” This translates roughly into, “Whoever owns the soil, it is theirs all the way up to Heaven and down to Hell.” This phrase went on to be quoted for centuries thereafter, even appearing in an influential treatise on property by the jurist Blackstone in the 1700s.

Of course, that was a different time. The concept of “real property” has undergone more changes over the years than you might suspect—particularly, where airspace is concerned, as a result of new technology.

In fact, the concept of a property owner possessing that space “all the way to heaven” would have prevented air travel, air shipping—all the benefits that airplanes have brought our species. Yet even as law permitted this new use of the airspace below Heaven, landowners were still considered to have a “buffer zone” that would protect them from intrusions that would limit their full enjoyment of a property; and any airspace that could be occupied or used by the owner was to be considered theirs.

Drones, of course, are a new and different thing altogether, and the law around them is a patchwork in a condition of flux. The Federal Aviation Administration has asserted its authority over “navigable space,”which is generally 500 to 1000 feet above the land, depending on the area, and over the concept of “no-fly zones”—and has even asserted that it has authority over drones at any altitude. And states have some say over an owner’s property rights—in many states, for example, a bullet fired by a hunter that crosses one’s land can be considered a trespass. Moreover, different regimes are being constructed for corporate, professional, governmental, and hobby uses. The latter is the least regulated, though registration may be required if the drone surpasses a certain weight limit.

Arizona, for its part, has passed some laws on the matter of drones, in particular SB 1449, which makes operating a drone “in dangerous proximity to a person or property” an act of Disorderly Conduct; orders that drones may not interfere with manned aircraft, law enforcement, or firefighters; holds that cities and towns in Arizona may not pass their own drone regulations or provisions; requires cities and towns that have more than one park to allow drones in at least one of them; and restricts the flight of drones by disallowing them from flying within 500 horizontal feet or 250 vertical feet of a “critical facility,” which includes water treatment facilities, power plants, courthouses, military installations, and hospitals.

You’ll notice none of these “critical facilities” are your property. As of right now, so long as a drone passing over your land poses no interference with your use of your property, keeps a safe distance, and causes no harm, it’s unlikely you would be able to successfully assert a claim of trespass against it. But, as we said above, this is an area of law in a state of flux, with various analogies being applied. It may be that the final set of comparisons has not yet been made—and this may well develop as courts are forced to contend with unforeseen events having to do with drone use.

Meanwhile, if you’re looking to engage with the real estate market in Scottsdale or anywhere else in the state of Arizona—as long as it lies between Hell and Heaven—you’ll need an experienced attorney with strong scruples on your side. Provident Law’s real estate attorneys represent parties on either side of real estate and financing transactions, including buyers, sellers, landlords, tenants, lenders, borrowers, trustees, guarantors, shareholders, partners, and others. We structure, negotiate and document a variety of real estate and financing transactions, such as leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects. Contact us for more details.

Christopher J. Charles is the founder and Managing Partner of Provident Law ®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS ® (the “AAR”). Mr. Charles holds the AV ® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.

Christopher is a licensed Real Estate Instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.com or at 480-388-3343.