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Can I Use a Drone to Take Photos or Videos to Help Sell My House?

The Federal Aviation Administration (FAA) has taken an aggressive stance against using aerial drones – unmanned aircraft – for commercial purposes. The FAA has jurisdiction over U.S. airspace, which gives it the authority to prohibit anyone from flying drones for commercial purposes. This has brought the agency into conflict with farmers, for example, who want to use drones to monitor their crops and fields. rq-1-predator-284179-m[1]

The regulations have also created a huge quandary for sellers of real estate, who have discovered that aerial photos and videos are incredibly effective tools for showcasing properties, whether vast country estates with extensive grounds or cozy cottages in leafy neighborhoods. The use of aerial drones to obtain such images is an inexpensive alternative and therefore quite cost-effective. The FAA prohibition, which companies interpret as precluding use of photos and videos taken by drones, has had a direct impact on this type of marketing for real estate.

The FAA recently investigated a New York area real estate company it suspects of using video footage from drone overflights to market its properties listed for sale. The agency asserts that it will not tolerate the unpermitted practice of using unmanned aircraft to take photos and videos of properties for sale.

There may be a loophole in the regulations, which many real estate attorneys consider absurd to begin with. While the commercial use of drones is prohibited, the FAA currently does not prohibit their use for a hobby or other non-commercial purpose. Thus, a homeowner can fly a drone over his or her home and use it to take photos or videos with no fear of retribution from federal authorities, since the agency only has jurisdiction over drones’ flight in airspace, not over the use of the photos or videos taken by drones.

However, in an abundance or an overabundance of caution, NRT, a respected national real estate firm, has directed all sales associates with its affiliated companies, including those in Massachusetts, not to use drone photography or videography, not even that taken privately by a homeowner, due to the risk of repercussions from the FAA. NRT would hold the associate responsible for any fines or penalties that might result from an FAA investigation into such use.

The NRT prohibition is so broad that it might even dissuade a homeowner from using his or her own drone-sourced photos or videos in a home listing, for fear of incurring the wrath of the FAA.

Many professionals in the real estate industry strongly suggest that the FAA should modify this policy to permit the use of drones to take images, both photos and videos, of property being offered for sale. They contend that there are few safety issues associated with this type of use, and there is no legitimate reason for the FAA prohibition on this type of commercial use of drones.

Any homeowner considering using drone photos or video footage to market a home for sale should consult an experienced real estate attorney to avoid any potential conflict with federal regulations. In addition, this is a continually evolving area of law and regulations, and the homeowner should consult with an attorney who will be knowledgeable on the current state of the law about drones.

For an experienced Massachusetts real estate attorney, contact the law firm of Pulgini & Norton, LLP today at 781-843-2200. Our firm handles all types of commercial and residential real estate needs for all kinds of clients. We’re confident that we can meet your needs while exceeding your expectations of service. To schedule a consultation, contact us or reach us by phone at our Downtown Boston, Hyde Park, or Braintree, Massachusetts office locations.

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