Proposed Avigation Easement Laws Could Create Toll Roads in the Sky for Drone Operations


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Several states are currently considering laws that could make commercial drone operations much more complicated—and expensive.

These proposed laws are generally grouped under the term “avigation easement” laws.

The word avigation is a combination of navigation and aviation, and the word easement refers to the need for crossing or using someone’s land for a specific purpose (like a photo shoot or a delivery).

avigation-easement-cover.jpeg

The proposed legislation varies from state to state. But the idea that connects them is to extend property rights for landowners into the airspace above their land, so that people who own land would also own the airspace over it.

With this new airspace ownership, property owners could then charge drone pilots to fly over their land.

So if you wanted to do an aerial photo shoot and had to enter the airspace above someone’s property, you’d have to pay the airspace owner. And if a drone delivery company wanted to fly through that person’s airspace to deliver a package, they would also have to pay.

Further, large landowners, including state governments, could potentially institute aerial “tollroads,” charging a fee for each drone that enters the airspace in order to conduct business.

Read today's post to learn more about avigation easements, the proposed laws around them, and a recent statement from AUVSI that strongly denounces them.

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You are correct, airspace can only be regulated by the FAA.  In addition, it’s not the right of the FAA to “give up” or transfer those rights without going through the public Notice for Proposed Rule Making.  

The airspace is public, as tax payers we own it.  The FAA is responsible for the safe operation of the airspace. They can restrict access based on your qualifications but if you meet the requirements they can’t stop you from flying. 

I don’t think the concept of Avigation is a real thing. I am a pilot and have lived next to an airport and as a homeowner I had no rights that could restrict the operations of the airport in any way. 

When AirWare started its purpose was to provide a platform where businesses and home owners could log in, pay a fee to restrict overflight of their establishment and pilots would have to login and pay for permission.  This is called user fees, and since tax payers pay for the NAS that’s not allowed. Having said that, it doesn’t mean that the current administration isn’t going to try.  
 

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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?

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On 5/17/2021 at 12:42 PM, Av8Chuck said:

I don’t think the concept of Avigation is a real thing. I am a pilot and have lived next to an airport and as a homeowner I had no rights that could restrict the operations of the airport in any way. 

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.

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