The use of drones across all sectors is increasing. Accountancy firm, PwC estimates that the emerging global market for business services using drones is valued at over USD 127 billion and the biggest slice of that market is most likely to be in infrastructure, including the ongoing supervision and maintenance of real estate.
There are without doubt huge opportunities for deploying this technology in the real estate sector, with a wide variety of potential uses to which drones could be put. However, at the same time there are numerous areas of law into which this technology can stray. It is therefore important that not only drone operators, but also those in the real estate sector who are considering using drones, have a clear understanding of their responsibilities and potential liabilities.
USES IN REAL ESTATE
1.Construction drones can be used both before any building work commences to ensure accurate surveys of sites and mapping of intended structures, through to monitoring weather conditions during builds and delivering progress reports in real time (and there are suggestions that there are already drones being used to ensure projects keep to time and to record where slippages occur). Drones can reach places people cannot (or which can only be reached with large and expensive equipment) not only allowing them to survey hard-to-reach places but also to assist in the actual construction process, saving time, money and avoiding placing workers in potentially risky situations.
2.Planning in addition to providing site surveys drones are being used to monitor compliance with planning conditions by councils and local residents and can be used by developers to provide accurate records of progress.
3.Property marketing aerial photographs and films are the new weapon in an agent's arsenal (and can be produced without the need for expensive helicopters and crews). Evidence suggests that aerial videos and images are resulting in increased interest and enquiries. That potentially leads to more competition for properties, increased returns and deals closing more quickly as the buyer/tenant has a better idea of the property they are purchasing/leasing.
4.Property maintenance drones can deal with the three Ds of robotics, that is, those jobs that are dirty, dangerous and dull (apologies to building surveyors!). Drones can quickly assess and report on the state and condition of a building, cost efficiently and without the need for weeks of expensive and unsightly scaffolding. They can ensure that issues are identified early and addressed quickly before they become more serious, hard to address and thus more expensive. In addition, when a tenant vacates a property drones can be used to prepare accurate and contemporaneous video or photographic dilapidations schedules for use either by a landlord, to identify any breaches of a lease, or by a tenant, as evidence of the state and condition in which the building was left.
5.Energy efficiency with the implementation of minimum energy efficiency standards in the UK and an increased focus on a property's energy usage, drones can play an important part in identifying how and where energy is lost within a property. Companies such as Siemens are already looking at using infrared cameras attached to drones to map the specific areas where heat is emitted by buildings, allowing owners to identify more easily opportunities for renovation and upgrading.
6.Retail drone usage in this sector is perhaps still waiting for "take off", although Amazon are running trials. Drones potentially provide faster deliveries in the ever competitive retail market place (especially last mile deliveries) and the ability for retail businesses to meet growing demands of consumers to receive goods instantaneously. Time will tell if this supplants or supplements existing methods of delivering goods and the impact it will have on retail and warehousing space.
7.Telecoms mobile operator EE recently showcased their patent-pending balloon and drone "air masts". The aim of these is to connect the most remote parts of the UK and fill network gaps on a more permanent basis in places where traditional telecoms masts are less effective or telecoms companies have been unable to construct as yet due to ongoing negotiations with land owners.
Drone usage in the real estate sector is not only subject to the usual elements of property law. The use of drones touches on various areas of law, all of which should considered both by drone operators and those employing their services, such as:
1.Trespass and nuisance flying a drone into or over a property that does not belong to a drone operator risks being found to be a trespass for which the affected landowner or occupier could take civil action. A landowner has rights to airspace in the lower stratum and, therefore, immediately above their land. Whilst historically it was considered that a landowner owned everything above their land "all the way to heaven", case law acknowledges that this will not be enforced all the way and an owner of land has rights in the air space above their land only to such a height as is necessary for the ordinary use and enjoyment of their land and the structures upon it.
That said, even where a drone is operating at such a height as to not trespass, persistent drone usage that causes an interference with the use and enjoyment of another person's property could be found to be a nuisance and/or an invasion of privacy.
2.Data protection law the use of drones that are equipped with cameras may fall within the scope of data privacy legislation. This is particularly relevant if the drone has the ability to zoom in on a specific person, or if a person could be identified by the context of the surroundings. The potential for intrusion (even if unintentional) is high, because of the height from which drones operate and the vantage point this affords. As such drone operators will need to ensure that they are acting responsibly and have respect for the privacy of any individuals who may be recorded by the drone. Where images or other personal data are transmitted from the drone to the operator (e.g. a live feed of video footage), or are stored on the drone (e.g. via the drone's memory card) there is an added risk in relation to the security of the personal data. Appropriate steps should be taken to adequately protect any personal data against interception, loss, or unauthorised access by using, for example, encryption methods.
Detailed privacy assessments should be undertaken to ensure that the drone use is necessary, proportionate and justifiable. In particular, operators should consider the capability of the camera (i.e. the ability to zoom), whether the flight plan of the drone presents any higher personal data risks, the implications of sharing images obtained from the drone's camera and the need to protect the images collected. Any data collected must be stored securely and retained only for the minimum time necessary for its purpose. Ensuring that the camera only operates when and where specifically required will help to keep compliance issues to a minimum.
3.Health and safety law as with many technologies accidents can occur, but if those operating drones are not appropriately trained there is an even greater risk of personal injury to individuals on the ground and/or the risk of criminal damage to property. This carries not only the risk of having to pay compensation but also potentially criminal charges and imprisonment.
In addition, health and safety considerations should always be at the forefront of a property owner or occupier's mind and whilst a decision may be taken to use drones to save humans having to undertake potentially risky surveillance and maintenance work, new health and safety issues will arise, such as ensuring the safety of those piloting the drones (who at present need to maintain a line of sight with the drone at all times) or simply those individuals on the ground beneath where the drone is operational.
4.Aviation law the Civil Aviation Authority ("CAA") regulates UK airspace and the Air Navigation Order ("ANO") contains regulations in relation to the flying of drones.
Where a drone is flown for non-commercial flights, the CAA has published a "Dronecode" confirming the relevant limits for flying drones safely and legally. In the event that a drone is used for the purposes of commercial operations or, is outside of the operating limits set out in the ANO, the operator must seek permission from the CAA (and, if received, must ensure that the drone is flown according to relevant limits for flying drones safely and legally). Accordingly, if a drone was required to carry out maintenance inspections of property, it would be required to have CAA permission to do so. If granted, the drone would be forbidden from flying over or within 150m of any congested area (which includes any area of a city, town or settlement which is essentially used for residential, industrial, commercial or recreational purposes) or within 50m of any vessel, vehicle or structure which is not under the control of the person in charge of the drone. More immediate uses are therefore likely to involve industrial premises and not those in populated areas.
Larger drones (with an operating mass exceeding 20kg) are subject to additional requirements, and if an individual or business wishes to conduct regular flights with their drone, they will probably need to submit an operating manual to the CAA for a permanent approval.
Drones are one of the many new technologies that are disrupting the real estate sector and evidence suggests those involved in the sector are starting to deploy drones to provide new and creative ways of carrying out traditional tasks at reduced costs. It is unlikely to be a technology that proves to be a brief fad and property owners, occupiers and managers should consider exploring how drones can assist with the development and management of their portfolios. DLA Piper is on hand to advise on how to deploy successfully such technologies for real estate businesses.