Hobby Exemption. To fly a drone without registering it requires that it be flown strictly for hobby or recreational use. (Public Law 112-95 section 336. and 14 CFR § 101.41) The FAA has applied model aircraft guidelines to drones, which they classify as "unmanned aircraft systems" (Interpretation of Special Rule for Model Aircraft), also known as "unmanned aerial vehicles" (UAVs). A board member using a drone to inspect and film the HOA's roofing company would likely be deemed a "business" purpose not recreational.
Business Purposes. FAA policy specifically excludes the use of unmanned aircraft systems for business purposes. (72 FR at 6690.) Business purposes are not limited to for-profit companies but would apply to non-profit associations as well. I know it seems silly but that means a board member flying his drone to document roof work for the association should apply for an exemption.
Privacy & Noise. The National Park Service has banned drones from many of their parks because of their noise, safety concerns and privacy issues (since most carry cameras). Associations can limit drones or ban them altogether for the same reasons. If the drone is equipped with a camera, it may violate Civil Code § 1708.8(a) which provides: "A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person."
Restricting Drones. Associations can impose restrictions on hobby and recreational drones by amending CC&Rs or through a rule change. Adopting a rule is much easier than amending the CC&Rs since it can be done by the board after a 28-day notice period. However, a CC&R amendment is easier to enforce if an HOA needs to go into court.
City and County. Any ban adopted by an association would apply only to members, residents and guests. If drones are being flown through the development by people outside the association, the board's options are limited. The HOA would need to go to the city or county to seek a ban.
Federal Aviation Administration. If a drone is not being flown strictly for hobby or recreational purposes, or otherwise falls outside the criteria of a "model aircraft" under 14 CFR 101.41 (exceeds 55 lbs., for example) it may be in violation of FAA regulations and should be reported to the FAA.
Real Estate. Boards should consider an exception for Realtors who get permission from the association to take pictures of house so it can be listed and sold. This would benefit members who want to sell their homes.
Recommendation: I recommend that boards start with a simple rule change. At some point when they update their CC&Rs, they can include the restriction.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.