Drones and privacy concerns of Massachusetts landowners

A developing area of state law is the availability of traditional remedies like trespass, invasion of privacy or nuisance in the context of drones flown over private property.

Based on media reports, people in the U.S. wonder when they will walk outside and finally see commercial delivery drones dropping packages by their doors. But it is not only commercial use of unmanned aircraft that people are wondering about. It is also a little disconcerting to see that you can walk into a department store and buy a drone that can take pictures or video from above the earth.

Of course, there will be no going back to a drone-less society. In March 2018, The Wall Street Journal published new Federal Aviation Administration projections of future drone use:

  • By 2022, the FAA believes there will be around 450,000 commercial drones in U.S. airspace, as compared to about 110,000 today.
  • If deregulation is successful, the number could even be more than 600,000 commercial unmanned aircraft by 2020.
  • By 2021, the FAA projects recreational drones will number around 2.4 million drones.

Drones over private property

Not much is more sacred in America than a landowner's right to enjoy his or her private property free from intrusion. A remote pilot, however, could fly a drone over privately owned real estate without permission. If equipped with a camera, the unmanned aircraft could take still images or record video of anything going on there.

Do Massachusetts landowners have legal rights of recourse in such situations?

Potential state law actions for trespass, nuisance and invasion of property

This scenario is so new that related disputes have rarely wound through Massachusetts courts, nor have many federal or state courts across the country yet released opinions about landowners' rights under state laws that protect private property rights vis-à-vis drone intrusions.

In June 2018, the Appeals Court of Massachusetts in Plymouth issued an opinion in F.W.T. v. F.T. that suggests these kinds of legal remedies may be appropriate in Massachusetts. While this case dealt with a request for a civil harassment prevention order stemming from a drone flown over property to film activity, the court also said that "the alleged actions, if property established, may be grounds for a claim of nuisance, trespass, or other cause of action, enforceable through properly obtained injunctive, equitable, or other relief."

This suggests that a state court in the right circumstance would be willing to order a drone operator to stop such flights, to take other action to right the situation or to pay money damages.

What would be a proper circumstance for relief?

First, in a successful claim for a private nuisance in Massachusetts, the landowner would have to show that the drone operator unreasonably and substantially interfered with the owner's enjoyment and use of his or her real estate.

Second, Massachusetts statute establishes the right to a suit for "unreasonable, substantial or serious interference with ... privacy." (Emphasis added.)

Third, a trespass suit requires an intentional invasion of land exclusively owned and controlled by another. Significant, complicated legal doctrines are still evolving concerning how far into the air a landowner's rights reach for purposes of establishing aerial trespass.

This area of law is complex and quickly changing, so be sure to talk to an experienced real estate litigation attorney if you experience any kind of drone intrusion, especially if you believe that the device took pictures or video or if the unmanned aircraft interfered with your activities or life.

The lawyers at Phillips & Angley in Boston represent property owners across the state in a wide range of real estate disputes.