Can HOAs use drones in Texas?

Date Published : May-27-2024

Written By : Kim Brown

The U.S. drone industry is soaring high. Drones have become more accessible, the technology has evolved to a point where virtually anyone can learn to fly a drone, and companies are now using the machines to deliver goods, create maps, gather data and assist with safety procedures.    

   

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Also known as unmanned aerial vehicles (UAVs) or unmanned aerial systems (UAS), drones can be used for fun or for work. The Drones World reports that the U.S. has nearly 900,000 registered drones in its records. Around 340,000 of those are commercial, and more than 500,000 are recreational drones.

   

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Enthusiasm for drone usage is strong in Texas. In fact, there are several websites dedicated to the best places to fly a drone. However, not everyone appreciates drones, and some people wonder if it is even legal to operate these machines.

   

Are drones legal in Texas?

Yes, they are. There might be a bit of confusion about this because, for a brief time in 2021, the Federal Aviation Administration (FAA) banned drones from flying over a migration camp underneath a bridge that connects Del Rio, Texas, and Ciudad Acuña, Mexico.

The order was intended to prevent news organizations from capturing footage of the camp. Customs and Border Protection, the Homeland Security agency that manages the border, requested the drone ban because agents and officers feared the drones endangered their safety. But the ban only lasted for a short time.

 However, since drones are so popular, several laws have been created to regulate drone usage.

   

Are drones legal in Texas HOAs?

Yes, but there may be additional rules or policies governing drone usage. Furthermore, HOAs do have the ability to ban drones altogether. We will cover drones and HOAs shortly.   

   

Federal drone laws

There is a hierarchy when it comes to drone rules. Federal airspace laws take precedence over state and local drone laws.

Drone operations in Texas are broadly governed by the FAA, so it is worth reviewing the federal laws first. Please note that we are only covering recreational drone use. Additional requirements and laws apply to people who are using drones for commercial purposes.

The FAA requires that people who operate drones and other UAS weighing more than 0.55 pounds, but less than 55 pounds, take the following actions:

   

Step 1 – learn the rules

Do you need to operate under the FAA Part 107 rules? Review them to find out, and make sure you understand what is and is not allowed under Part 107 rules. If you do not need to follow these rules, it’s still important to know things like how high you can fly your drown, and where you can and cannot operate it.

   

Step 2 – pass a test

Drone operators are required to pass the Recreational UAS Safety Test (TRUST). It is possible to complete this test online for free through any of the FAA-approved test administrators.

After successfully passing the TRUST, you must download, save, or print your completion certificate. The administrators do not keep these records meaning that if you lose your certificate, you will need to re-take the test.

   

Step 3 – register your drone

 The FAA also requires owners to register their drones and label them on the outside with a registration number provided by the administration. You are also expected to carry proof of registration with you when flying.

   

State drone laws

Texas State legislature has enacted supplemental rules specific to drone operations. While federal laws emphasize safe operation, state laws focus more on privacy. This list below does not contain all of the rules, but you can click here to view complete details.  

The State of Texas’ Government Code regarding the use of unmanned aircrafts details what is considered permissible use (423.002), and what is considered an offense (423.003, 423.004, 423.045, 423.046).

It is legal to capture an image using a drone in any of the following circumstances:

  • with the consent of the individual who owns or lawfully occupies the real property captured in the image
  • pursuant to a valid search or arrest warrant
  • at the scene of a spill, or a suspected spill, of hazardous materials
  • for the purpose of fire suppression
  • for the purpose of rescuing a person whose life or well-being is in imminent danger
  • if the image is captured by a Texas-licensed real estate broker in connection with the marketing, sale, or financing of real property, provided no individual can be identified in the image
  • if the image is captured by a professional, licensed engineer, provided the image is captured in connection with the practice of engineering and no individual can be identified in the image

   

It is illegal to capture an image using a drone under the following situation:

  • A person uses an unmanned aircraft to capture an image of an individual or privately owned real property with the intent to conduct surveillance on the individual or property.

This is considered a Class C misdemeanor.

Someone who is found guilty of this could face the following penalties:

  • $5,000 for all images captured in a single episode in violation of Section 423.003; or
  • $10,000 for disclosure, display, distribution, or other use of any images captured in a single episode in violation of Section 423.004; or
  • recover actual damages if the person who captured the image in violation of Section 423.003 discloses, displays, or distributes the image with malice

An action brought under this section must be commenced within two years from the date the image was captured or initially disclosed, displayed or distributed.

   

HOAs and drones

Whether a member wants to use a drone for fun, or the association has decided to use a drone for inspections, these devices can be used safely and legally in HOAs. But not every homeowner will see the benefit of drones. Some may even worry about their potential to interfere with privacy rights. And then there’s the noise. That can be a true nuisance.

HOAs can ban drones if members are using them in a manner that violates the safety or privacy of others. However, it may be easier to place restrictions on recreational drone use. If a complete ban is established, the board has to be prepared to enforce the ban.   

Similar to security cameras, drones do create privacy and liability concerns. But unlike security cameras, governing documents may not address drones since they are a more recent technology.

Either way, it is always a wise idea to create a policy for drone operations. That way, expectations are established before problems have the opportunity to arise. Plus, policies are easier to amend than bylaws.

The policy should address usage for individual members and by the association, if applicable. The drone policy may also include the following items:

  • designated flying areas
  • designated flying times
  • height limitations
  • privacy rules
  • system for reporting drone violations
  • penalties for non-compliance
  • registration form

Drones can pose a liability risk to homeowners associations. If a drone accidentally injures an owner or damages property, the victim could claim negligence and take legal action against the association. Therefore, associations are encouraged to obtain sufficient insurance coverage to safeguard the community from drone liability.

   

Drones used by the association

Drones can be used by the association to inspect large common areas, such as parks or golf courses, as well as properties within the community. However, owners will likely oppose drone inspections. They may argue that it is an invasion of their privacy since a human conducting a property inspection would not have a clear view of their backyard.  The counterargument to that is nearly all HOAs have governing documents that contain provisions allowing the HOA’s representatives to enter and inspect an owner’s property for violations.

If your HOA is already using drones, or is considering using them for inspections, the best thing you can do is be honest with owners and let them know about inspections ahead of time. Owners should also have access to a policy that details how and why the association uses drones.

Finally, don’t overlook this important bit of information; anyone who uses a drone for inspections would need to follow FAA commercial use laws and rules. Once an operator starts using a drone to record images and video, they are considered a commercial drone operator and must be licensed as such.

Hiring a third-party drone operator who holds a commercial license could be a good option for some communities. This way, none of the HOA staff have to get a commercial license, and owners may feel better having a neutral party inspect their property (after all, the board members would be subject to the same inspections as other members of the association).
   

Drones used by individual members

If members are permitted to fly drones for recreation purposes, the association must take adequate steps to ensure owners have access to the rules regarding drone operation. This means posting the policy on the HOA’s website, document library, or in another easily accessible location.   

If complaints about a drone are received, the owner of the machine should be informed by the association that they may receive a fine, or may be asked to stop operating the drone if the complaint is valid and improper usage continues.  Like any other violation,  associations must follow the process established by the HOA when trying to correct unsanctioned drone usage. That could mean issuing a warning letter first before sending a formal violation notice.

On occasion, an owner may ask the HOA to allow a realtor to take drone footage of their property for the purpose of selling the home. Unless there is a good reason to deny this request, HOAs are encouraged to grant the owner approval. As a courtesy, the board can also give notice to other owners regarding the drone so that there are no surprises.

   

Conclusion

Drones bring joy and excitement to the people who fly them. But if a drone user lives in an HOA, they must respect the space and privacy of their neighbors. Unless the machines are creating recurring issues for the community, HOAs can look at ways to balance the interests of drone users with the rights of other members to create a harmonious living environment within your association.

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