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ARTICLE: Who owns the air above your home?

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I had a conversation with my neighbor (a realtor) and he was asking how he can protect his privacy from another neighbor flying his drone low and close to his house. My realtor neighbor is still researching local laws and such, but below is an excerpt from an article I found in just a quick search. Here's the link for the full article: Who owns the air above your home?. I found similar articles dating back to 2013, but there are probably older ones as well.

EXCERPT:
Surface land is divided into clearly defined parcels under the control of local government to protect property owners, whereas “navigable airspace” is under the control of the federal government to keep the airspace safe for manned aircraft and the public below. The area between these spaces is considered low altitude airspace – a grey area that does not clearly belong to either group. Loosely translated, the FAA is responsible for “navigable airspace,” which is defined by commercial and general aviation’s lower altitude limit of 500 feet above ground. Private property, on the other hand, has been loosely defined as owning at least as much space above the ground as they can use in connection with the land. The courts set precedent on this matter in the late 1940’s at approximately 85 feet above ground (see: UNITED STATES v. CAUSBY et ux.).​

Has anyone dealt with this issue???
 

ArrUnTuS

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You have a serious problem there. And the reason is very clear, the limits of airspace have not been clearly defined. When flight limitations are placed in certain areas, they are defined by a base and a roof. Base: SFC and Roof: 1000 ft AGL (for example). It means that from the surface to 1000 ft you can't fly. In my country it is clearly defined, at the same time that an aircraft is separated from the ground, even if only 1 mm, it is under the regulations of the State Aviation Safety Agency (AESA). It is clear that no one will allow anyone to fly above your windows, but still the competence is from AESA.

Regarding what you say about your neighbor, in my opinion and without knowing much about the laws of your country, he should focus on privacy laws. He should have the right to privacy and honor protected.
 

AerialZ

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I had a conversation with my neighbor (a realtor) and he was asking how he can protect his privacy from another neighbor flying his drone low and close to his house. My realtor neighbor is still researching local laws and such, but below is an excerpt from an article I found in just a quick search. Here's the link for the full article: Who owns the air above your home?. I found similar articles dating back to 2013, but there are probably older ones as well.

EXCERPT:
Surface land is divided into clearly defined parcels under the control of local government to protect property owners, whereas “navigable airspace” is under the control of the federal government to keep the airspace safe for manned aircraft and the public below. The area between these spaces is considered low altitude airspace – a grey area that does not clearly belong to either group. Loosely translated, the FAA is responsible for “navigable airspace,” which is defined by commercial and general aviation’s lower altitude limit of 500 feet above ground. Private property, on the other hand, has been loosely defined as owning at least as much space above the ground as they can use in connection with the land. The courts set precedent on this matter in the late 1940’s at approximately 85 feet above ground (see: UNITED STATES v. CAUSBY et ux.).​

Has anyone dealt with this issue???
I suggest everyone reads and understand the Causby case because it has little/nothing to do with UAS operations. It is WIDELY misquoted just because of the airspace context. Here are a couple of brief excerpts -
UNITED STATES v. CAUSBY said:
This is a case of first impression. The problem presented is whether respondents' property was taken within the meaning of the Fifth Amendment by frequent and regular flights of army and navy aircraft over respondents' land at low altitudes. The Court of Claims held that there was a taking and entered judgment for respondent, one judge dissenting. 60 F.Supp. 751. The case is here on a petition for a writ of certiorari which we granted becuase of the importance of the question presented.

Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. It has on it a dwelling house, and also various outbuildings which were mainly used for raising chickens. The end of the airport's northwest-southeast runway is 2,220 feet from respondents' barn and 2,275 feet from their house. The path of glide to this runway passes directly over the property which is 100 feet wide and 1,200 feet long. The 30 to 1 safe glide angle

Quite simply, an overflight of an aircraft operating in the NAS alone is no grounds for legal action. In the Causby case, the frequent overflight of aircraft due to the proximity of the land to the airport created problems for the land-owner's chickens 'commiting suicide in fright.'

There are many more excerpts that could be taken from this case, but the bottom line is this case, nor any other to date has changed the fact that land-owners do not 'own the air' in navigable airspace and no altitude parameter has been set. The FAA regulates all airspace in the NAS.

Now, if you continually harrass someone by operating at low altitudes over their property, you're opening-up a completely different can of worms.
 

AH-1G

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I suggest everyone reads and understand the Causby case because it has little/nothing to do with UAS operations. It is WIDELY misquoted just because of the airspace context. Here are a couple of brief excerpts -


Quite simply, an overflight of an aircraft operating in the NAS alone is no grounds for legal action. In the Causby case, the frequent overflight of aircraft due to the proximity of the land to the airport created problems for the land-owner's chickens 'commiting suicide in fright.'

There are many more excerpts that could be taken from this case, but the bottom line is this case, nor any other to date has changed the fact that land-owners do not 'own the air' in navigable airspace and no altitude parameter has been set. The FAA regulates all airspace in the NAS.

Now, if you continually harrass someone by operating at low altitudes over their property, you're opening-up a completely different can of worms.
Was the airport there first or the chicken house?
If the airport preceded the chicken farm, the owner of the chicken farm has no beef,:p he should have known of the consequences his chickens being chicken!o_O IMO.
 
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Similar issues in Australia. Airspace is Federal governance. Councils often prohibit drones (UAV) from council reserves etc. but all this means is you can take off nearby and fly over any council park and they have no jurisdiction at all. What applies is the Federal laws which control height and proximity to humans plus all the other flight path control zones as gazetted.
Again, privacy is the issue and thats not been tested in law here yet as far as I know. As a pro photographer if you received payment for an image that features a person or a building then they have rights to a percentage of that fee. Thats a copyrights issue...something else.
I think its just common sense that governs a lot of this. If we are shooting a lot around an area we will notify the residents. Usually there is no need to fly low over other people homes unless you are shooting a neighbouring house. So again, just notify them if you need a 45 degree look into a house from above a neigbours.
 

PatM

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I had a conversation with my neighbor (a realtor) and he was asking how he can protect his privacy from another neighbor flying his drone low and close to his house. Has anyone dealt with this issue???

The operative wording is "too Close"

Privacy rights vs airspace. This issue is less about airspace and more about an expectation of privacy. Where and when someone claims their right to privacy was violated will always be what a case comes down to in regards to legal matter between a homeowner and a UAV operator.

As a homeowner your right to privacy is protected inside your house, but not necessarily everywhere on your property. Intent to invade someone's privacy is another component. As an example, if you are hired to photograph a house and in doing so a neighbor is seen in their backyard, they cannot claim you invaded their privacy UNLESS they can show and prove in a court of law that you intended to go up and see them. On the other hand if you take a picture of a house that you're not hired to shoot and obtain pictures showing someone within that house you very well may; have demonstrated intent to invade privacy.

Most people who are afraid of "drones" looking at them have no problem taking a trip to the mall and being captured on hundreds of cameras on the way to and from and while inside buildings; not to mention how many times they are caught in some one else's pictures and selfies, let alone the fact that google maps probably has better photos of their house and property than they can take themselves and; and - here's the kicker - Google intended to take those pictures of their property.

Play it safe. Fly by the rules as it pertains to the airspace you're flying in. When we get a job, we always ask the realtor or property owner to advise neighbors that we will be on site. We make sure to never fly over or step on; anyone's property without permission unless we are well away from their house and finally, We never take a picture of anything but the property we am shooting, if other property's are captured, the one we're shooting will be framed.
 

MapMaker53

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Another irony is you are actually legally allowed onto most people's private property without issue or claim of invasion of privacy. Anyone who walks up to someone's front door and rings the doorbell has done just that.
 

PatM

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I did some research and found the following rules as they pertain to privacy here in Florida. Most states will likely have similar on the books. I've redacted out a lot of text that does not pertain to this conversation.

(3) PROHIBITED USE OF DRONES.—

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

(4) EXCEPTIONS.—
This section does not prohibit the use of a drone:

(d) By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license. However, this exception does not apply to a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 

ArrUnTuS

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I did some research and found the following rules as they pertain to privacy here in Florida. Most states will likely have similar on the books. I've redacted out a lot of text that does not pertain to this conversation.

(3) PROHIBITED USE OF DRONES.—

(b) A person, a state agency, or a political subdivision as defined in s. 11.45 may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

(4) EXCEPTIONS.—
This section does not prohibit the use of a drone:

(d) By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license. However, this exception does not apply to a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

That makes much more sense. People's privacy is protected. The point is that a licensed drone pilot can record images as long as they are not intended to infringe on people's right to honor or privacy.
Continuing with the initial topic, if the neighbor recording your property does so intentionally and without permission or pilot's license would not be legal. That's how I understand it.
 
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PatM

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I think so. Another way to look at it (and this is just my reading of that law)

If you are a homeowner, you can expect privacy behind fences and walls that are meant to keep neighbors and strangers from seeing what you are doing - unless and except for - those entities that are lawfully conducting business with no intent to view or disturb your person or property.

Perhaps put a different way - UAVs are here. ;)
 

ArrUnTuS

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I have always understood it not strictly within the boundaries of the property, fences or not, but the walls that form your home. The house itself or any kind of construction. Seeing what happens inside, through the windows, is what you can't do. Everything under a roof. We have to take into account that air space is considered everything that is directly under the sky, any construction that has a roof, its interior and is not air space and therefore the air regulations do not apply.
 
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I will chime in on one aspect, that airspace is actually defined by the FAA as all airspace above ground, at least in the US (and ICAO is standard for most of the world, so this applies to most of the world). The NAS has a variety of airspace classes, some starting at altitude, some starting at the surface, but there is the catch all "Uncontrolled Airspace (Class G)" which is always from surface to X whenever another Class airspace does not exist. So, essentially, and technically, the FAA governs all airspace in the US (and the appropriate governing agency in each individual country globally).

I am not a lawyer, but I do fly airplanes around the world. The biggest issue I see a "legally operating" drone operator will have with locals is with "perceived" privacy or other issues where local ordinances can be violated, with or without a drone. If a local calls the cops saying your drone is "spying" on them or your a "Peeping Tom", you can bet police will be questioning you and they could take you in legally. And the problem here is that it doesn't have to be a "real" activity, rather a "perceived" one, which is why drone advocacy is something we all must do to educate the locals and calm their "fears".
 

PatM

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I have discussed this very topic with a friend that is Orlando PD. We conjured up many possible scenarios where someone (as you have noted) "perceives" their privacy being infringed. You are right that; once police are on scene, the questioning would begin. But in nearly every scenario, being able to produce; An FAA Authorized certificate for UAV operation, proof of being hired by the realtor or homeowner to fly on the location, and letting the officer and homeowner view all pics and/or video - would be an overwhelming argument that the operation is legitimate - as seen by an officer.

But we know there will be those homeowners who would insist some law had been broken, but having the officers first hand knowledge of the events would lean strongly in favor of the operator in court. The best defense is stay within the law and always be polite. I had one case where a homeowner was suspicious of our activities and he waited until we were between the two houses at the closest point - I was not on his property - didn't matter, he turned the sprinklers on. :p He stood at the window with a stupid blank stare, so I just backed up a little finished the flight and landed just out of reach of the sprinklers, shut down, grabbed my gear and waved and smiled and walked away. Most time the neighbors just want to watch and ask the same questions over and over.
 

AH-1G

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So I have a two story home, my neighbor has a pool soooooo, I could use my cell to take video or pics from my window while I'm in the house. Kinky as it sounds but I could get away with it? What if I'm outside on a balcony? What if I fly my SLAC straight up over my property, because it's a SLAC do I get in trouble?
SLAC: Slow Low Aerial Camera
 
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@PatM - Most of the time I get interrupted by locals who just want to watch and see what you see on the screen. If I have the battery life, I like to take time to show them and educate them as well. And many times they are shocked at how "close" I can see as I use a 45mm (equivalent of a 90mm) on my X5S a lot for shooting certain things, such as wildlife so as not to disturb them...

Compare-1-2.jpg


The image is cropped down to show more of Anhinga and less brush :), but was shot with an I2 and X5S.

@AH-1G - As crazy as it may seem, yes. You can be as perverted as you want from within your home, as long as your neighbor doesn't suspect anything. Fly a drone and your neighbor WILL (likely) suspect something, even if you are doing anything perverted.
 
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PatM

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So I have a two story home, my neighbor has a pool soooooo, I could use my cell to take video or pics from my window while I'm in the house. Kinky as it sounds but I could get away with it? What if I'm outside on a balcony? What if I fly my SLAC straight up over my property, because it's a SLAC do I get in trouble?
SLAC: Slow Low Aerial Camera

No SLACs are special:D so its all good.
 
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BigAl07

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I will chime in on one aspect, that airspace is actually defined by the FAA as all airspace above ground, at least in the US (and ICAO is standard for most of the world, so this applies to most of the world). The NAS has a variety of airspace classes, some starting at altitude, some starting at the surface, but there is the catch all "Uncontrolled Airspace (Class G)" which is always from surface to X whenever another Class airspace does not exist. So, essentially, and technically, the FAA governs all airspace in the US (and the appropriate governing agency in each individual country globally).

Very well put sir.

And the problem here is that it doesn't have to be a "real" activity, rather a "perceived" one, which is why drone advocacy is something we all must do to educate the locals and calm their "fears".

BINGO!!

A person's perception is their reality (at least until we can prove otherwise).
 

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