Drones: Will They Fly in Iowa?

Drones are a great way to view property in a unique fashion that can be tailored to an individual buyer. A buyer could view their potential morning commute and traffic patterns that they are likely to encounter once they move, they could see when there is the highest amount of foot traffic outside their home or business, or even a current development in their area which may affect their decision to purchase.

In Agriculture, drones have been used by farmers to monitor their crops on large farms, helping them manage growth and view trends that their crops tend to go through. With information gained, they hope to increase future production.

While one is considered a commercial venture, would the other? According to the viewpoint by the the Federal Aviation Administration, yes. Despite both uses potentially resulting in a commercial gain, only the REALTOR’S® actions, even without charging for the service is, by the FAA own interpretation utilizing the drone for a commercial venture and therefore falls under FAA regulations.

The FAA released a statement the week of June 30th, 2014 which specifically bans a REALTOR’S® use of drones to gather imaging for a property they are listing. The FAA statement was an attempt to countermand the many REALTORS® and lawyers stating that their drone use cannot be regulated as they are hobbyists as they are not charging for the drone flights.

The FAA cannot regulate those using drones as a hobby, if the drone in use is under 55 pounds and being flown under 400 feet in the air. However, the FAA can regulate those using drones for commercial purposes and, as of last week, they included REALTORS® using drone imaging for potential buyers to view a property as “commercial” usage.

Despite the FAA statement, many do not believe that they have the ability to regulate drone usage in real estate. In Iowa, there have been REALTORS® who have been using drone imaging to look at the surrounding land for houses and to monitor development and building projects. For the most part, they remain within 400 feet of the ground while operating a drone that is less than 55 lbs. They likely do not feel threatened by the FAA’s current attempt to regulate drone flights for real estate and penalize those found in violation.

REALTORS® and others using drones for commercial purposes find footing for their stance in a recent decision by a judge regarding the FAA’s ability to enforce their current regulations (see FAA v Pirker, 2014 NTSB LEXIS 22). It held in part, because the FAA does not currently have a rule in place regarding drones, they aren’t actually able to enforce the mandates they have sent out.

The rules the FAA attempt to adopt must first be approved by Congress otherwise they lack the legal backing to enforce fines against those using drones in a somewhat commercial venture. The FAA is currently appealing the judge’s decision given in their complaint against Raphael Pirker basically that struck down the FAA’s ability to regulate drone usage.

As a result of the Pirker case, many lawyers argue that until the FAA is able to pass the laws, rules and regulations needed to regulate drones and how they are to be used, the FAA is unable to enforce the standards they are currently trying to implement. The National Association of REALTORS® advises REALTORS® not to use drones until the FAA provides standards, stipulations, and requirements to their usage.

However, as the FAA is unlikely to do so soon, many REALTORS® have engaged in drone usage presently in an attempt to utilize the new technology and provide a more complete picture of property to potential buyers. In Iowa and in other states, some REALTORS® have adopted the motto, “It’s easier to ask for forgiveness than permission” as the rules may not even be available for another year or later.

For Iowa REALTORS® using drones, it is at their own risk. Using drones for Real Estate may open REALTORS® up to legal action, fines, or other penalties, but it also may help them get a leg up on competition in providing a unique service to buyers as long as they do not charge for the service.

The FAA may not currently have the ability to enforce drone law, but that does not mean they never will, or that they won’t gain that ability sooner rather than later.

For more information on Errors and Omissions Insurance from RISC and how it may be affected by drones see: The Buzz About Real Estate Drones.

Sandra Clasen attends Drake University Law-School and serves as a legal intern for the Iowa Association of REALTORS®.

Paul McLaughlin is the Legal Counsel for the Iowa Association of REALTORS®. He can be reached at (515) 309-9334 or paul@iowarealtors.com