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Who owns the air above your home?

Jeff Horton

Who controls the airspace above your home? This question is beginning to generate a lot of attention lately. Under the current law, there is no clearly defined line to understand the answer. The courts have been kicking this concept around for decades and until recently have had relatively little need for clarity. Considering the increasing use of drones from both commercial and recreational users flying in this space, there is growing pressure to resolve this lack of clarity.  The “grey area” has yet to be defined.

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: https://www.law.cornell.edu/supremecourt/text/328/256).

This is a messy subject to dig into for most non- legal professionals, but for drone operators the law’s vagueness presents issues on a daily basis. From the property owner’s perspective, there are privacy and ownership issues to be considered and from the FAA’s viewpoint there are concerns about air traffic and public safety. Both sides have legitimate interest for safety and privacy and they are both closely monitoring the drone industry. We have all seen drones flying in many locations, and often even being piloted by our neighbors. Is it okay for your neighbor to fly over your house at 50 feet?  how about 100 or 400 feet?  If manned aircraft don’t fly below 500’ what business does the FAA have governing the area above your house below the “navigable airspace”?  These questions will have to be resolved by the courts as more and more disputes arise.

The drone industry continues to develop drone technology at lightning speed. Drone technology has huge potential and we can expect to see drones becoming more of an integral part of everyday life.  The reality is that unmanned and manned systems will all be traveling through this “grey area” with greater frequency as capabilities and use cases advance. Clarity on control and ownership will come from a collaboration of efforts from lawmakers, the public, and drone users working together to keep people safe while enabling this technology to reach its full potential.

Moving forward, keep an eye on your local lawmakers. Many have already begun challenging jurisdiction on the “grey area” above private property by implementing contradictory laws. This state of legal contradiction is likely to be ultimately challenged at the Supreme Court level to establish precedent. Hopefully, the courts will establish legislation that allows us to continue flying and be able to use our drones wherever safe and responsible, for both commercial and recreational purposes. We encourage drone pilots to be safe, use good judgement and be respectful as a rule. It is always good practice to notify property owners before flying over their property in order to avoid unnecessary conflict.