Are drones legal in real estate practice?

Sometime in the past year or two, the real estate universe decided that use of drones to take aerial photographs would revolutionize real estate (and, apparently, every other industry). But it seems that nobody checked with the Federal Aviation Administration (FAA), which, currently forbids the use of these sorts of devices for commercial or business purposes—and has since at least 1981.

The more correct term for a drone is an Unmanned Aircraft System, or UAS, as defined by the FAA. You may also hear the National Association of Realtors® (NAR) use the more generic term, UAV, for Unmanned Aerial Vehicles.

Regardless of what you call it, use of a UAS in your real estate practice was and is prohibited under FAA regulations. And, yes, they really mean it.

How do we know Realtors® can’t use a UAS for marketing purposes? Among other reasons, the FAA issued some examples of prohibited uses in June 2014, which included “A Realtor® using a model aircraft to photograph a property he is trying sell and using the photos in the property’s real estate listing.”

So with that clear guidance, why do some people still recommend that Realtors® use UASs in their business? There are three specific myths I’ve seen come up in discussions with members:

“I read somewhere that NAR has taken care of it and we can use them now.”

Not quite. A 2012 statute requires the FAA to write regulations on the issue by September 2015. NAR recently adopted a formal policy statement in support of commercial use of UASs, and NAR has engaged with the FAA to encourage them to write the rules swiftly and to allow broad commercial use of UASs. But until the rules are actually adopted and released, UAS use is prohibited.

“I qualify for an exception” or “The vendor says they have a permit.”

No, you don’t, and no, they don’t. No matter what you hear or read from any well-meaning friend, colleague, property owner, vendor or armchair lawyer, there’s not an exception that applies to you (at least as of the date this article was published). According to the FAA website, only two UAS models have been approved for commercial use, and then only for flights over the Arctic for things like oil exploration.

“There’s a court case that says the FAA can’t fine me if I’m caught.”

Sorry, but no. It’s true that a federal judge had overturned a $10,000 fine assessed against a UAS pilot in Virginia, which gave folks some speck of hope. But the National Transportation Safety Board (NTSB) has overruled that decision and reaffirmed the FAA’s ability to regulate these aircraft.

So, how do you reduce or eliminate the risk of finding yourself on the business end of an FAA enforcement action? Perhaps it’s a bit obvious, but the easy answer is that you should not use a UAS in your business—which is exactly what at least one large brokerage has advised its agents to do. It may be fun and it’s cool, but it’s not legal.