Can Private Property Owners Ban Drone Overflights?

In a previous blog, [hyperlink the legally flying your drone blog] we discussed the new Transport Canada rules, regulations, and fines surrounding recreational drone use in Canada. While these rules introduced new “basic” and “advanced” pilot categories (with related certification and registration requirements), they also loosened some of the operational requirements regarding where a drone can and can not be flown. Airports, Heliports, National Parks and Provincial Parks are no-fly zones, as are other designated areas, but as long as pilots are the proper distance away from those spots, and follow the other rules respecting their pilot licence, they can fly more or less anywhere.

But what about over/across private property? With their cameras and ability to fly anywhere in the sky, drones have the capability to peer into areas that have previously been inaccessible to the public. Can private property owners – be it a residential house, a 100,000 acre nature conservatory, or anything in-between – ban or otherwise restrict drones from flying/hovering over their property?

This is a complicated question that requires a review of the current laws surrounding drone use, as well as applying existing laws to the new situation that drones have created.

Current Drone Regime

Drone operation is under the jurisdiction of Transport Canada, and is regulated by the Canadian Aviation Regulations (the “CARs”), which are made pursuant to the federal Aeronautics Act.

The primary purpose of the CARs is aviation safety, i.e. ensuring a drone does not pose a risk to other (occupied) aircraft or to the public when they operate. The CARs are less concerned with issues related to privacy, trespass, or nuisance. The only real restriction in the CARs that could be said to involve a privacy element is the requirement that “basic” operators not fly within 100 feet (30 metres) of another person. While this effectively grants individuals a 100 foot radius where they (and therefore their private property, if they are on it) are free from drones operated by “basic” operators, the CAR does not, in of itself, confer any private property restrictions on drone overflight.

Perhaps in an attempt to bridge this gap, Transport Canada advises drone pilots that in addition to complying with the CARs, drones must be flown in a manner compliant with:

  • relevant sections of the Canadian Criminal Code (the “Code”), including Offences against Air or Maritime Safety, Breaking and Entering, and Mischief;
  • the applicable provincial Trespass Act; and
  • laws related to voyeurism and privacy.

Criminal Code and Voyeurism/Privacy Issues

In addition to operating drones in compliance with the CARs, drone operators and bystanders alike must be mindful of relevant sections in the Code which govern drone flight. Section 77 of the Code states that causing damage to an aircraft in service that renders the aircraft incapable of flight or that is likely to endanger the safety of the aircraft in flight is an offence. As drones are considered aircraft, this section restricts bystanders from attempting to render the drone incapable of flight.

The Code also makes voyeurism an offence. Pursuant to section 162, it is an offence to surreptitiously observe, whether by the naked eye, mechanical, recording or electronic means, a person who has a reasonable expectation of privacy and is nude or engaged in sexual activity. The ever advancing technology of drones gives rise to the fear that drones may be employed to observe and/or record unsuspecting individuals in private, such as in their bedroom. Given the access over private property that drones are able to achieve, the Code’s section 162 arguably makes a hovering, observing drone outside a bedroom window an illegal act if it is observing intimate actions inside.

“Air Rights” and Trespass/Nuisance Above Private Property

The questions raised by drones operating over private property require a fresh examination of old legal principles pertaining to property rights.

Prior to the recent surge of drone use, the only things that could intrude into the air space above private property were planes and helicopters (both of which operate at higher elevations than a drone) or structures such as overhanging buildings or swinging cranes. The issue of low elevation intrusion into the air space above private property – such as that done by drones – has therefore yet to be considered in any substantial manner by Canadian courts.

To further complicate matters, in law, a private property owner does not have any legally quantified ownership right to the airspace above their property. Rather, the law is that a private property owner’s rights to the airspace above their property is limited to “such height as it is necessary for the ordinary use and enjoyment of his land and the structures upon it,” per the precedent set in the English case called Bernstein of Leigh (Baron) v. Skyviews & General Ltd. (and affirmed in Canada).

But what does that mean? How much airspace above a property is required for the property owner’s “ordinary use and enjoyment” of their property? Some guidance on this issue can be sought from cases involving the civil torts of trespass and nuisance.

The civil tort of trespass prohibits unwanted entry by a person or the unwanted placement of an object upon an owner or occupier’s land. Pursuant to British Columbia’s Trespass Act, an offence occurs when a person “enters premises that are enclosed land; enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited; engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.” Hence, fenced private property with “No Trespassing” signs.

The prescribed definition of “premises” in the Trespass Act, however, relates solely to land and does not include airspace. Nevertheless, trespass has also been found to occur in instances where an airspace intrusion interferes with an owner’s ordinary use and enjoyment of their land. In those cases, trespass was established where there was a degree of permeance to an airspace intrusion (over private property) that was either low enough or conducted in such a manner that precluded the actual or potential enjoyment of the land. On this standard, intrusions of a transient nature that do not pose much, if any, interference to an owner’s use/enjoyment of the land, such as a drone passing overhead or briefly hovering before departing, are less likely to be considered trespass given that the intrusion would likely not have enough permanence to interfere with the land’s use/enjoyment.

Often discussed in conjunction with trespass, the civil tort of nuisance is an unreasonable interference with another’s use and enjoyment of one’s property from outside the property. Nuisance is assessed on a balance of reasonability and one’s enjoyment of their property is assessed as being able to do as they please.

Does a temporary drone overflight truly diminish a property owner’s enjoyment of their property? This would likely be a highly factually-specific question, and depends on factors including the size and loudness of the drone, how long it spent over the property, its elevation (both generally and in specific relation to other structures on the property such as a building’s rooftop), what it was doing (stationary vs. continually moving around), the use to which the property owner was putting their property and how they were enjoying it. In other words, nuisance requires a subjective analysis that weighs the relative rights of two (or more) parties, as opposed to prescribed activities. A rural property owner whose natural landscape is a sanctuary for birds/wildlife, for example, may be more easily able to establish nuisance from a drone as compared to a city dweller whose property doesn’t have a single tree or blade of grass.

The issues of trespass and nuisance as they pertain to airspace rights over private property were highlighted in the case of Janda Group Holdings Inc. vs Concost Management Inc., 2016 BCSC 1503. In that case, a landowner sued over a construction crane from a neighbouring property that would occasionally swing over his own. The BC Supreme Court concluded that, while the crane did intrude into the landowner’s airspace from time to time, it did not necessarily constitute trespass (so an injunction prohibiting it from doing so was not an appropriate remedy). The Court did find, however, that the overhanging crane was a nuisance, and granted damages to the landowner. It further held that the amount of nuisance damages should be more than nominal, and should reflect the use of the airspace. In other words, the amount awarded will depend on the facts of each case, including the conduct of the parties.

Conclusion

While the buzzing of a drone over your private property may be extremely annoying, it seems that there is little private property owners can proactively do to prohibit overflights. As is often the case with new technology, the laws have not necessarily kept pace with the current reality. It therefore seems likely that we will see an increasing number of cases before the Courts where the exact limits, if any, of drone use over private property will be decided.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

24,581 thoughts on “Can Private Property Owners Ban Drone Overflights?”

  1. Some are medicines that help people when doctors prescribe. drug information and news for professionals and consumers.
    https://mobic.store/# cost mobic online
    Drugs information sheet. Drugs information sheet.

  2. Everything information about medication. safe and effective drugs are available.
    https://lisinopril.science/# lisinopril brand name australia
    Comprehensive side effect and adverse reaction information. Some are medicines that help people when doctors prescribe.

  3. Comprehensive side effect and adverse reaction information. Everything information about medication.
    zithromax z-pak
    Learn about the side effects, dosages, and interactions. All trends of medicament.

  4. Some are medicines that help people when doctors prescribe. What side effects can this medication cause?
    https://edonlinefast.com buying ed pills online
    What side effects can this medication cause? Everything about medicine.

  5. Some are medicines that help people when doctors prescribe. Read information now.
    amoxicillin order online
    drug information and news for professionals and consumers. safe and effective drugs are available.

  6. Now, the entire sector started pivoting toward EVs, catapulting a massive race for dominance. This dynamic potentially sets up an intriguing and profitable environment for the best electric vehicle stocks. Chief Executive Elon Musk told a quarterly conference call that Tesla would not launch new models like Cybertruck this year because it would dent volume growth in the face of supply chain headwinds that would be alleviated only next year. The battery being a major component of electric vehicles, battery manufacturers will be highly benefited from the electric revolution in India. The government of India has also announced some incentives in battery manufacture and R&D, so the stocks are going to skyrocket in this sector. Electric vehicle stocks are continuing to slide on Monday as a broader market turnover continues to affect the economy. Tesla faced several price target reductions on Monday morning amidst a lower-than-expected delivery count for Q3, while Rivian shares are down due to a recall that affected over 12,000 vehicles. However, these are not the only two companies facing heat during Monday’s trading session.
    http://bookforum.kr/bbs/board.php?bo_table=free&wr_id=4447
    Sign up here to get the latest franchise opportunity updates and more delivered directly to your inbox. Be the first to know! • Brand strength (system size, years in business, years in franchising and social media); The first step in our ranking process is gathering the data. Starting in June 2022, we asked franchisors to fill out our extensive online form and submit a copy of their current Franchise Disclosure Document (FDD) or Canadian Disclosure Document. A whopping 1,321 companies supplied all the required information. Each submissions was vetted by our editorial team before being entered for data analysis. Glass Doctor® is an industry-leading glass franchise specializing in both auto glass services and home and business glass services.

  7. Pingback: best seo link building services

  8. During his time at the club, Edwards has been smart in how he went about business. Speaking on the 90 Minutes with Neville Southall podcast, Carragher discussed a conversation he had with Edwards and the “startling” role agents play in transfers. Edwards’ LinkedIn profile lists an almost Friends-like status with him as ‘on a break’ but the links to recent rumours are there for all to see. Top of his page is the current Monaco Sporting Director Paul Mitchell, whose confirmed he will leave the club at the end of this campaign. Mitchell has long been linked with the same role at Anfield that Julian Ward is set to depart (also in profile) as Liverpool’s search intensifies. Enter Miguel Delaney and his hokey-cokey article the other night. Delaney claimed that Liverpool were set to have talks with Mitchell, but updated it later to say he was no longer in the running and was indeed potentially set to move to Old Trafford if INEOS were successful.
    https://www.jaimecourir.fr/detailcalendrier.aspx?Cmpcod=268218
    Manchester United vs Chelsea: Why was the 2022-2023 Premier League game postponed? “Sadio will take part. Sadio will be in the squad. Because the thing was ticked off and was already ticked off with the decision of last Thursday. We will await if he plays tomorrow right from the beginning,” he told the press. “Now that the case is already closed, subject already died. So I don’t think that this will give us a huge boost. This kind of energy in the dressing room it shows also the determination and shows like that it’s alive, that the players are not happy, that the players like are angry with themselves with each other, which can be used as a which is also kind of a form of energy.” There will also be analysis of Manchester City’s threats and weaknesses, before they hand over to Dan Roebuck and Jeremie Aliadiere who will provide live audio commentary. of the game – so don’t miss out!

  9. Snoop Dogg is a fun and funny host. The new series is based on the original series, with two contestants facing off. They spin three giant wheels on a mock slot machine with a card game motif. Snoop Dogg Presents The Joker’s Wild will tape in Culver City, CA March 2nd, 5th, 6th, 7th, 8th, and 9th. Please submit your information below and we will notify you as soon as tickets are released. In addition to a series order for “The Joker’s Wild,” TBS announced Wednesday: Season 2 of Snoop Dogg Presents The Joker’s Wild premiered on April 15, 2018. “When you hear the words ‘game show host,’ Snoop Dogg probably isn’t the first name to pop into your head,” said Michael Bloom, senior vice president of unscripted series and specials for TNT and TBS. “But it turns out he is a great fit that brings passion to this game show with a laid-back vibe to the casino-inspired craziness surrounding him. This is a labor of love for Snoop Dogg and Michael Strahan, and a perfect addition to TBS’s comedy lineup.”
    https://slot-machine-free-spins-19.bloggersdelight.dk/2023/04/27/ignition-casino-free-spins-in-sa/
    Mr. Ye Yuan (a.k.a. Tony Yuan Poker or Ye Yuan Poker or YUAN365 Poker) is a professional poker player who has competed on the world stage in many prestigious poker tournaments. He specializes in the game of no-limit Texas Hold’em Poker. He finished in 5th place in 2020 WSOP Home Race, 3rd place in WSOP Online Event #1 and 4th place in 2021 WSOP Online Event #12.  Focus on the CardsA hoodie and sunglasses seem to be the standard poker uniform at the WSOP. Former FBI agent body-language specialist Joe Navarro dismisses the flashy poker accessories. “It makes you see a lot less at the table,” he stresses with a smirk. Navarro explains that when a player is wearing sunglasses, he is still easy to read: “It doesn’t block how their eyes react when they arch their eyebrows.”