Against the law to do real estate photographs with drone?

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Hey all!

TL;DR Is it illegal to do drone photography in a neighborhood if the neighbors call the cops?

So a friend brought up a valid point in regards to droning in residential neighborhoods.

Scenario: You are taking pictures of a house in a busy neighborhood with lots of houses around, neighbor doesn't like the drone so calls the cops.

Is the pilot in the wrong here? Would the pilot have to leave without getting the real estate shots, which in turn means he/she would have to refund their client and not do the project and no further projects in residential areas?

For hobbyists, I believe the rule is that you can't come within 25ft of the house. So for a hobbyist, if you keep your drone at least 25ft away from the neighbors houses, then you are good to go?

For commercial uses, I do not see a 25ft rule, I believe the law just states "You can’t fly a small UAS over anyone who is not directly participating in the operation, not under a covered structure..." (FAA website). So now you are allowed to go within 25ft of your neighbors home? What if there is a child riding a bicycle down the street? Just make sure you don't go directly over them?

Any input is greatly appreciated, thank you so much for your help!!
 

Mark The Droner

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First thing you should do when posting a question like this is tell us whether you're flying Part 101, Part 107, or something else.

Regardless, IMO, what you're describing is not legal. You can't take pictures "of a house" because that would be spying on that particular house.

I've never heard anything about a 25' rule. Don't know where you're getting this from.

I can't comment further because I don't know how you're flying... (101, 107, etc.)

MHO - I'm not a lawyer
 
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I've never heard any 25 ft rule either. What I do know is: FAA Part 107 Summary rules and best practices for UAS privacy. There are no specific rules about how close you can fly. It's no different than how close you can take a photograph from the street. Why would it be any different? The legal issue is would the neighbor have a reasonable expectation of privacy? If you're taking a photograph from well above the neighborhood where no personally identifiable information is displayed then there should be no law broken (so long as all the other rules are followed).

I also found an informative youtube video:
. The video explains a legal precedent from 1946 that says the navigable airspace the FAA controls (and hence a private landowner has no jurisdiction) is 83'. Interesting stuff... but the best rule of thumb is to be a good neighbor to the best of your ability but they have no expectation to privacy of photos of their house from the air - no different than Google does with satellite photos.
 
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I'm also not a lawyer, so this is just based on both my experience as a longtime hobbyist and as a Part 107 licensed pilot. I'm also assuming you're in the USA (if I'm wrong here, I apologize and you can ignore the rest of this post).

Hobbyist: 14 CFR Part 101, Special Rule for Model Aircraft, paragraph 101.41b states "(b) The aircraft is operated in accordance with a community-based set of safety guidelines and within the programming of a nationwide community-based organization;" (link). Now the FAA has generally shied away from defining 'community based organization', but the only commonly accepted CBO by the FAA is the Academy of Model Aeronautics.

In the AMA Safety Code (link) paragraph B(6) states "With the exception of events flown under official AMA Competition Regulations, excluding takeoff and landing, no powered model may be flown outdoors closer than 25 feet to any individual, except for the pilot and the pilot's helper(s) located at the flightline."

So essentially the CBO says no closer than 25 feet to persons; there's no mention of structures that I can find (at least for the USA). There's also no case law here, but my guess is these AMA rules would be the basis of any FAA enforcement if an actual violation were to occur.

Commercial: Firstly, if a person is going to be flying under part 107 rules, he or she must be a licensed part 107 remote pilot - this should go without saying. You're correct in the prohibition of flying over persons not involved with the operation but there's no set lateral separation rule like the AMA has in place.

Real estate photography was definitely one of the envisioned use cases when part 107 was crafted, so for situations like what you describe, paragraph 5.11 of AC 107-2 states "If selecting a site that is populated/inhabited, have a plan of action which ensures persons remain clear of the operating area, remain indoors, or remain under safe cover until such time that the small UA flight has ended." In commercial applications this can mean spotters, traffic cones, etc.

Privacy: This is a very murky area and can vary depending on what state you're located in. Generally speaking however, I think anywhere you go if you have permission to photograph the property from the property owner, you're good to go. The challenge here is public perception, as in your scenario where the police are called by a neighbor. There may be a public nuisance ordnance that could be applicable here - again, depends on your locality and the interpretation of the totality of the circumstances by any responding police officer.

The law that governs what can be photographed without permission is contingent on what is in public view where there's no reasonable expectation of privacy. However, this legal standard applies to what law enforcement may use as evidence without requiring a warrant. Drones are a very new area, legally speaking, so there is very little case law surrounding your scenario when the harm is more of a civil tort than an actual crime. Warrant or not, some people believe everything they hear about evil drones in the media, so there is always a possibility of an ill-informed individual thinking "I see drone so it must be spying on me" (as if their lives were even that interesting in the first place).

Bottom line is that anyone can call the police for anything. As evidenced by some overzealous California law enforcement officers confiscating drones that weren't even flying as contraband at a recent state fair, not all police are well informed of the law surrounding drones. Also as a public service announcement, arguing with the police while on scene is never a good idea. Best practice would be to land your drone, apologize for the inconvenience, and take the matter up with an aviation attorney.
 
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You mentioned a client and money, so the only way taking such footage is legal would be as a part 107 pilot. After that, if you have been hired by someone with a legitimate interest in the property such as the owner or their real estate agent, other homeowners in the area would have no more basis for a complaint than if you were standing on the ground and their house was in the background. I would, however, make sure that I had proof such as a contract or PO that I was working a proper job anytime I was taking pictures of other people's property. Like others here, I am not a lawyer and free legal opinions are worth every penny you pay for them!
 

Mark The Droner

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So essentially the CBO says no closer than 25 feet to persons; there's no mention of structures that I can find (at least for the USA). There's also no case law here, but my guess is these AMA rules would be the basis of any FAA enforcement if an actual violation were to occur.
It's from AMA's Safety Code which is encompassed in Part 101:

AMA Safety Code paragraph B(1) — “All pilots shall avoid flying directly over unprotected people, vessels, vehicles or structures and shall avoid endangerment of life and property of others.”
 
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It's from AMA's Safety Code which is encompassed in Part 101:

AMA Safety Code paragraph B(1) — “All pilots shall avoid flying directly over unprotected people, vessels, vehicles or structures and shall avoid endangerment of life and property of others.”
Yep, missed that. Who pays attention to those CBO standards anyways?
 
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Real estate photos typically don't take more than 25 minutes, especially in a neighborhood where homes are close to each other. So by the time anyone can complain and the cops show up you're done.
The sUAS is an aircraft and you're a licensed pilot so neighbors don't have any right to stop you.
Only exception is in an HOA neighborhood and it would depend on what the bylaws and cc&r's say. In that case you may have to launch from the owners property or from outside the development.
As mentioned, a friendly conversation usually gets you past any problems.
 
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Many states do have privacy requirements that require you to have the homeowner's permission. We've been gathering state drone laws which you can find here. It's a starting point and helps you to know where to look. We'll try to keep it as up to date as we can. Hoping we'll get lots of feedback as folks learn things. (Also not an attorney.)
 
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Looks like a Bring your son/daughter to work day is needed. Then let THEM fly the drone for the shot.
Program way points so no one is flying the drone perhaps?

I don't think there are any laws that require a person to call cops before it is illegal. Open Carry being the lone exception, and only illegal in the mind of the cops.
Trespassing would be the closest, and you need to tell the person to leave not the cops.
 

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