By Stephen M. Kirkland, Esq.
Originally Published March, 2015
Science fiction! Actually not. Over the last several years, technology available to the homeowners association has exponentially grown. Drones have become the proverbial “Soup de Jour.” An increasing numbers of homeowners associations use drones to inspect common areas, architectural improvements, combustibles on balconies in high rises, etc. Is this good or bad? That depends on who you ask.
For associations with vast acreage, using drones to inspect the common area has become commonplace because it is less expensive and tends to be a more effective vehicle to inspect architectural improvements, open space, brush clearance, and various security issues. People inspections are more expensive, less effective and arguably more intrusive than a drone flying 200 feet above. As the quality of the cameras in drones improves, the use of drones promises to increase.
Drones, however, have a downside. One of the significant issues is inspection of balconies on high-rises. Instead of looking 200 feet down, a scenario which generally would not create an unreasonable intrusion, the drone’s cameras cannot help but be pointed directly into bedrooms and areas in which owners have an expectation of privacy. There is also a potential risk because drone pilots are not yet required to have proper training and occasionally crash drones. Most observers believe it is only a matter of time before a drone causes a fatal accident. The trend appears to be to limit and highly regulate the use of drones in urban settings.
The use of drones can also sometimes cause homeowner “push back.” Some residents view the use of a drone by an association or an association member as distasteful or even as an invasion of privacy. While we all suspect that the NSA is monitoring us by satellite and records all cell phones, emails, etc., the idea of an association using a drone may not sit well with a segment of some members. Legal or not, a drone sometimes creates a picture of “big brother” even more than a physical inspection by a person, despite the fact that an inspection by a person can be far more intrusive.
Drone use has been argued to violate Civil Code Section 1708.8, which, in general, outlines the elements for invasion of privacy. While perhaps distasteful, proper drone use will rarely result in a cause of action for invasion of privacy in an association. The covenants which dominate association living and applicable laws result in a lower expectation of privacy. In fact, the Davis-Stirling Common Interest Development Act, specifically Civil Code Section 5975, provides that both an association and each individual owner has the right to enforce the association’s governing documents. The enforcement process affords a right to inspect which is not otherwise available outside of an homeowners association. The proper use of drones to catch unapproved modifications and misuse of common area is fair game.
The trend is for more drone use by associations. The reason is economics. Properly operated drones flown several hundred feet above the properties provides a less intrusive and broad overview of common areas and lots than inspection by people. In the case of condominium balconies, which are hard to inspect, drones are particularly effective. There is currently a problem with lack of pilot training. In that regard, dozens of statutes and regulations are being considered by states, cities and the FAA.
Finally, no, you cannot shoot down drones which come within range of your shotgun. The military and certain governmental entities, however, purportedly can and do so. There is purportedly a current device which can, when merely pointed at a drone, overload its circuits, almost like an EMP blast. Our government will neither confirm nor deny that this device exists. If it does, no doubt that a number of association members will want one.