Association Authority Over Condominium Airspace And Drones.

Can, and should, Hawaii condominium associations regulate their air space? Resolving this issue will become increasingly important for Boards of Directors, especially as the advent of recreational drones “takes flight.”
Unmanned aerial vehicles, more commonly known as drones, are no longer reserved solely for the military and government sector; in fact, drones are becoming increasingly popular for hobbyists. According to Bloomberg News Service, more than 10,000 drones per month have been sold in the past year by amazon.com, allowing individuals to fly drones (many with camera and/or video mounted platforms) over their homes, parks, and other open spaces.
Currently, the Federal Aviation Administration expects small drones to be kept below a ceiling of 500 feet, away from crowds, only flown during daylight hours, and within a line of sight of the operator.
Drones bring up some concerns for Hawaii condominium associations. First, condominium residents may be wary about the potential invasion of privacy and right to quiet use and enjoyment of their property. Second, some mainland associations are considering either banning drones outright, or on the opposite end of the spectrum, using drone technology for code enforcement and/or security measures; Hawaii condominium associations may want to follow suit.
A strong argument could be made that Hawaii condominium associations do have the power and authority to regulate drones flying over their property, because airspace is part of the common elements of the condominium.
Although air space is not specifically set forth as one of the enumerated “common elements” defined by statute,[1] rights to the airspace above one’s property are an integral and fundamental property right.[2] Consequently, the governing Board of Directors, through their authority and power to regulate the use, maintenance, repair, replacement, and modification of common elements, should, arguably have the power to regulate air rights.[3]
Drones (and their operators) that constitute a nuisance can be regulated and dealt with easily, by and through the governing documents. As a corollary to that; non-Owner operators of drones are trespassing on condominium airspace if they fly over the condominium without express authorization to do so.
Therefore, it is advisable that Hawaii condominium Associations take a proactive approach to drones and drone technology by amending, if necessary, their governing documents (Declarations, Bylaws, and House Rules) to include explicit provisions regarding use of drones and regulation of condominium airspace, even if only to unequivocally establish that the Association has the right to do so.[4] By reserving this right, Associations can be flexible in their handling of drones as the technology adapts, and with it, the rules, regulations, and laws governing drones.
As drones develop and become more popular, more issues will arise for condominium associations, such as:
Should the Association use drones to conduct visual surveys of the property without damaging the property? Or to enforce code violations?Should the Association use drones as a means to enforce security at the condominium? If so, who should have access to the camera feed?What precautions should be taken regarding drones and injury to Owners and guests?Should insurance be purchased to cover drone-related incidents?
By clearly delineating what authority the Association has regarding drones and condominium airspace, by and through the governing documents, Boards of Directors can be proactive in protecting their property interests and in securing a better living community for their Owners. Our Firm provides expert counsel for community association leaders.
References:
[1] See HRS § 514A (including, as part of the common elements, “[a]ll other parts of the property necessary or convenient to its existence, maintenance, and safety, or normally in common use”); see also HRS § 514B-3 (defining common elements to include “all portions of a condominiums other than the units; and any other interests in real estate for the benefit of unit owners that are subject to the declaration”).
[2] In re Honolulu Rapid Transit Co., Ltd., 507 P.2d 755 (Haw. 1973) citing United States v. Causby, 328 U.S. 256, 264 (1946) (explaining the common law tenet of cujes est solum, ejus est usque ad coelom et ad infernos, “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell,” that a landowner “owns at least as much of the space above the ground as he can occupy or use in connection with the land”); see also Life of the Land, Inc. v. City Council of the City and County of Honolulu, 606 P.2d 866 (Haw. 1980); see also Ober v. Lighter, Civ No. 26964 (Haw. Ct. App. 2008).
[3] See HRS § 514A-82(a)(9)-(10); see also HRS § 514B-104(a)(6).
[4] See HRS § 514A-82(a)(9)-(10); see also HRS § 514B-104(a)(6).
2018-05-09T23:08:44+00:00

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