Articles and Publications

Drowning out the drones: trespass and FAA registration

February 6, 2020

Related PeopleKevin M. Coyne

Practice AreasReal Estate

No law defines how far above real property a howeowner’s airspace rights extend; therefore, drone owners must be aware they risk civil and/or criminal trespass when they fly in residential areas. All drone owners must be aware of federal and local laws related to drone flight.[1] A drone owner should not only routinely monitor the Federal Aviation Administration (FAA) website for guidelines summarizing recent and proposed regulations relating to drone ownership but should also be familiar with local drone laws restricting drone usage.[2] 

Drones, trespass

FAA regulations limit drones to a maximum flight height of 400 feet in Class G airspace.[3] While the FAA established a maximum flight height for drones, no minimum height over property exists because trespass of real property is a creature of state law. However, no state has attempted to define a height of real property because the FAA has the authority to regulate all navigable airspace.[4] So, when does a drone commit trespass? 

In Illinois, trespass includes not only the individual’s actions but also any “thing or a third person” acting either negligently or intentionally.[5] Illinois courts have held that trespass may be merely intrusion or a continuing trespass that interferes with the homeowner’s enjoyment of the land. Nominal damages may be the only reprieve for a single drone trespass; however, an equitable remedy, such as injunction, may be granted to stop drones that continually trespass.[6]  While the civil consequences of trespass may be nominal, an individual may be criminally liable for trespass by a drone as well—which involves remaining on land of another after notice to depart or entering land with notice not to do so.[7]  

To combat drone flight, states such as Illinois have restricted who may use drones and how they may be used. Statutes or regulations include restricting the use of drones by registered sex offenders,[1] preventing drone take-offs and landings in public parks or other state owned property[2] and interfering with individuals engaged in various activities.[3]

Registration and aeronautical knowledge test

The FAA Reauthorization Act of 2018[4] re-established FAA regulations and created a registration requirement for recreationally flown small unmanned aircraft[5] (drones).[6] Recreational drone owners who have qualified drones will also be required to take “an aeronautical knowledge and safety test,[7] which will be proposed by the FAA in early 2020.[8] Pilots of drones in excess of 55 pounds must receive special certification from the FAA as these drones are not classified as a small unmanned aircraft.[9] All drones used for a commercial purpose must be registered with the FAA.[10]

Contact a Chuhak & Tecson Real Estate law attorney for additional information regarding drone activity and enforcing trespass to real property.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

For more information contact Kevin Coyne (312 855 5441), principal and Real Estate practice group leader.

[1] The Federal Aviation Administration (“FAA”) is tasked to “develop plans and policy for the use of navigable airspace and …ensure the safety of aircraft and the efficient use of airspace.” 49 U.S.C. 40103(a)(1)-(2).
[2] See generally Ill. Pub. Law 98-0402 (making it illegal to interfere with an individual hunting or fishing through the use of a drone). State laws do not regulate airspace, but the use of drones.
[3] 14 C.F.R. § 107.51. Prior to the promulgation of these regulations, drones were authorized to fly in Class G airspace; however, the FAA has limited this to a maximum of 400 feet with narrow exceptions.
[4] n the past one hundred and fifty years, the ad coelum doctrine has proved to be impractical. See Generally The New Art of Flying, Waldemar Kaempffert, (1911) (discussing the inapplicability of the ad coelum doctrine even in the age of hot air balloon flying Kaempffert states, “[e]very man who sailed over the land of another would be a trespasser.” Id.).
[5] Dial v. City of O’Fallon, 81 Ill. 2d 548, 556-57 (1980) (Emphasis added). See generally State v. Wilkinson, 724 So. 2d 614 (Fl. App. 1996) (holding a defendant was properly charged and with trespass based on shooting a bullet into another person’s yard).
[6] P.L. 115-254
[7] The author has no knowledge of any prosecutions of this kind in the state of Illinois to this date.