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When we’ve discussed drones in the past, we have focused mainly on how condominium associations can (and should) regulate their use to mitigate the safety and liability risks
these small, unmanned aerial vehicles may create. But risks aren’t the whole story. Drone technology also has many potential benefits that community associations are beginning to recognize.
The most obvious benefits
involve maintenance. Drones equipped with high-definition or thermal imaging cameras
can inspect building exteriors quickly, cost-effectively and safely, without putting
human hands on the buildings or human feet on the roofs.
“We can go wherever a
hummingbird can go,” Tom Weitbrecht, the owner of Greater Boston Drones, a company that
provides drone inspection and mapping services, tells me. “I can put an eyeball against what anyone
needs to see without ever leaving the ground.”
Anything visible to the
eye – areas of stain or mildew, breached flashing, broken shingles – can be
recorded in high definition and in two or three dimensions, by the drone’s
camera. A drone’s perspective may also capture
details in areas a hands-on inspection can’t reach. And you don’t have to worry about a drone
falling off the roof, putting a foot through it or dropping a hammer on it.
Although these are early
days for drone usage in New England condominiums, some of our clients are using
the technology to inspect roofs, gutters and chimneys as part of a regular
maintenance program and are reporting both efficiencies and cost-savings.
Fast and Cost-effective
A condominium community with
30 buildings can inspect every roof, every gutter, and every chimney with a
single drone deployment. The cost, we
are told, could range from as little as $1,500 for smaller communities, to
$2,500 to $3,500 for larger communities, with 75-to 150 buildings, depending on
the land area, elevations and obstructions.
Hands-on inspections would take much longer and cost more.
Many cities – Boston
among them – require periodic façade inspections for high rise buildings and
drones are being used to perform that task.
Boston requires inspections by a
licensed engineering firm every five years for commercial and residential buildings
taller than 70 feet. Traditional inspections require engineers to assess the
building from scaffolding placed around it, can take several weeks, cost owners
several hundred thousand dollars, and typically require the closing or partial
closing of nearby streets. A drone can
take high resolution pictures of the façade from all angles in a few hours and transmit
them to engineers, who can conduct the inspection from their desks.
Even buildings that aren’t subject to the façade inspection requirement can benefit from periodic drone imaging to track changes that may indicate degradation of materials over time or highlight small problems on their way to becoming bigger ones. A tiny water spot that has grown much larger over the course of a year probably requires attention. For a spot that hasn’t changed, monitoring may be sufficient.
Varied Uses
Community associations
can use drone imaging in a variety of ways, extending well beyond regular
maintenance, all of which can provide time and money savings:
· Insurance. Before
and after images of damaged areas can help document an insurance claim. Some insurance adjusters are now using drones
that take pictures, analyze the damage and send a report before the adjuster
leaves the property.
·
Energy conservation.
Thermal images can indicate heat loss through windows and some roofs, enabling building
owners to identify targets for potential energy-saving replacements or
repairs. This
thermal technology works on membrane roofs common in commercial structures, but
not on asphalt roofs more common in residential buildings. It also can’t be
used to assess heat loss in brick buildings, but experts say it works fine in
clapboard and other non-brick and mortar structures.
· Construction.
Regular drone inspections can track an ongoing construction project in real
time to be sure the work is being done properly and to identify errors or
oversights. The construction engineers the association might hire to oversee
the project can review drone photos from his/her desk, instead of spending
countless (expensive) hours on the site, keeping eyes on the work.
· Security and rules enforcement. These are among the obvious areas where drones can be useful, but they are also among the most problematic, primarily because of the privacy concerns these uses can trigger. More of that below.
Privacy Concerns
Privacy is an important
consideration when deploying drones in a community association. When it comes to owner privacy, the legal
rule-of-thumb holds that individuals have legal rights wherever they have a
“reasonable expectation of privacy.” A unit owner clearly has a reasonable
expectation of privacy within his/her unit or other areas not readily visible
by the naked eye. However, that
expectation does not extend to common areas.
Unit owners do not have a reasonable expectation of privacy when walking
across common grounds, the parking areas or when utilizing amenities such as a
tennis court or clubhouse. Exclusive use
common area such as a rear porch or patio is a bit of a legal gray area.
A drone flying over
rooftops to inspect them is not likely to violate anyone’s “reasonable
expectation” of privacy. Drones flying
over common areas to monitor parking or dog waste violations would also be on equally
solid legal ground.
However, drones hovering over private, exclusive use patios or outside unit windows to see if residents are violating no-smoking rules, storing belongings improperly or housing prohibited pets raise more serious concerns and should be avoided for that reason. The more intrusive the surveillance is, or is perceived to be, the greater the risk that someone will complain that their privacy rights are being violated.
Mitigating the Risks
Privacy concerns should not make associations forego the use of drones to inspect their property or to monitor rules compliance; but boards should recognize the potential liability risks and take reasonable steps to mitigate them:
· Whether the
association is deploying a drone it owns or (as is more likely for most) hiring
a third party to collect images, be specific about where the drone can fly and
what images it can collect.
· Focus on common
areas. Don’t allow drones to hover near or point their cameras directly toward
owners’ windows so as to see inside, even unintentionally. Entrances and private decks and patios should
also be off limits.
· Develop policies
for managing the images the drones collect, specifying who sees them, how the images
are saved and for how long.
· Explain the
association’s drone policies to owners. Make sure they understand that drones
the association owns or employs aren’t going to be spying on residents.
· Inform owners when drones are going to be operating in the community, explain what they are doing and what images they are collecting.
Advance notice of drone operations is essential. If residents are on notice that drones will be operating in the area, they are less likely to be alarmed by them and suspicious about what they are doing.
Eyes on the Present – and the Future
Privacy is a major
concern when deploying drones but it isn’t the only one. Boards should also consider the association’s
potential liability for property damage or personal injury. With those
liability risks in mind, boards should:
· Make sure any company they hire is
properly licensed, adequately insured and has experience doing this work.
· If
the association is deploying a drone it owns, make sure the individual
operating it has the “remote pilot certificate” required for commercial
operation of a drone. The association’s
use of a drone would fall into that category.
·
Make sure the association’s insurance will
cover damage resulting from a drone operated either by the association or by a
third party it hires. Even if the drone company
is insured, the association may still be sued by individuals claiming harm and
will have to defend that suit. For the
same reason, the association should require residents operating recreational
drones to be properly insured and licensed as well.
Drone technology is still evolving. New risks related to drone usage will no doubt be identified and boards must be aware of them. But they should also be aware of the ways in which community associations can benefit from drone technology. That list is going to be increasing as well.
A partner in the
Braintree law form of Marcus Errico Emmer & Brooks P.C., Dean
concentrates his practice on the general representation of condo and HOA boards
in Massachusetts, New Hampshire and Rhode Island. Such representation includes lien enforcement
and rules enforcement matters as well as condo document amendments and
interpretation. He works closely with
boards to provide legal advice and counsel for day-to-day governance issues. Dean’s
email address is dlennon@meeb.com
