RealEstateAtty

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  1. Avigation easements are certainly a real thing. The fact that you have not directly dealt with one as a homeowner could be for a number of reasons. 1) A previous landowner could have granted an avigation easement, and if so such a burden on the land would exist in perpetuity as a separate property right. You might even see it in the exclusions of your title insurance policy. 2) Similarly, the airport and the land where your home is located could have been previously owned by the same entity, and when that entity subdivided your residential parcel off from the land that was, or became, the airport, an avigation easement may have been reserved over your land. Like #1, above, this may show up on your title insurance policy. 3) Your applicable state or local government may have "taken" an avigation easement at some point in the past through eminent domain. Again this may show up in your title insurance policy. 4) Your property may be located far enough from the applicable flight paths or from the airport that an avigation easement is not necessary because no aircraft flies directly over your land at a low enough altitude to affect private ownership of the land below.
  2. The idea that avigation easements would eventually be necessary for drones is based on basic tenets of property law going back hundreds of years, and recognized by the US Supreme Court in the 1940s. Landowners also own a limited amount of airspace above their land and have the right to control that airspace and who enters it. Unfortunately, the drone industry spent the last few years ignoring this possibility and hoping it would eventually go away, but it really can't. It is going to be really unfortunate if the drone industry's collective short-sightedness hurts continued development of the drone industry and all the good it has to offer. Even if a state, or the federal government, were to pass a law prohibiting avigation easements and allowing drones to fly wherever the like, such a law would liking be viewed as an eminent domain taking and require compensation of every landowner subject to the law. Do we really want a legal regime where somebody can legally fly a drone ten feet off the ground of my backyard? Or where police can fly drones ten feet off the ground all around one's property?