January 5, 2018 | By Charles Botensten

Q: Are drones legal to use for real estate purposes in New York City?

A: No. Using drones in the real estate business raises some interesting possibilities, such as using them for overhead photography of houses and grounds or for exterior shots of high-rise apartments. However, drones, also known as unmanned aircraft systems (“UAS”), cannot be used for any purpose in the real estate business in New York City, or anywhere else, because they are not authorized for carrying people or property for compensation or hire.  So, whether you buy a sophisticated, heavy-duty drone with a built-in, high-resolution digital video camera, or you strap a camera onto your child’s remote control helicopter, it can’t be used for payment or commercial purposes.

The Federal Aviation Administration (“FAA”), which regulates all civil aviation from ground level to over 50,000 feet, is responsible for everything from air traffic control to the regulation of the vehicles and devices that inhabit U.S. air space, whether they’re jumbo passenger jets or UAS. Unmanned aircraft with cameras are used for many public, government purposes, such as surveillance, research and law enforcement. They are also used for private recreational or hobbyist purposes, such as remote-control helicopters, whether with or without cameras. But no unmanned aircraft, regardless of size, may be used for commercial purposes in the U.S.

Today, the FAA is working to develop regulations that will allow certain commercial operations of UAS in low-risk, controlled environments. As a foretaste of what the new rules may allow, in late September, the FAA granted a few very narrow exemptions to existing rules to allow six movie production companies to operate UAS, but only if drones are operated by licensed pilots, are inspected before every flight, are kept in sight at all times, are flown in very restricted areas, and are not used at night.  Considering that the New York metropolitan region is one of the most densely populated and congested airways in the country, the likelihood of the authorized commercial use of UAS is remote.

When reading or talking with others about using drones in your business, you may encounter some of the following statements. These are all myths – don’t believe them.

  • The FAA doesn't control airspace below 400 feet. Wrong: This statement confuses the FAA’s regulation of model aircraft with its jurisdiction over aviation in general.
  • Commercial UAS over private property and below 400 feet are OK. Wrong:  You can’t fly a commercial UAS by claiming that you’re following the Model Aircraft guidelines (below 400 feet, 3 miles from an airport, away from populated areas.)
  • There are too many commercial UAS operations for the FAA to stop. Wrong: The FAA reports that it uses many ways to find UAS operations and enforce its rules effectively.

Commercial UAS operations will be OK after September 30, 2015. Wrong:  This is actually the deadline that Congress gave the FAA to come up with a plan for “safe integration” of UAS, not the date that drones will be permitted in bussinesses.  

The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel

Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP