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MAR Notes from the Legal Hotline - July 2016

MAR Legal Staff, 7/11/2016

Michael McDonagh, MAR General Counsel
Ashley Stolba, MAR Associate Counsel
Justin Davidson, MAR Legislative & Regulatory Counsel


July 2016

On June 21, 2016, the Department of Transportation’s Federal Aviation Administration has finalized the first operational rules for routine commercial use of small unmanned aircraft systems (UAS or “drones”). The FAA's announcement marks a long-fought victory for the National Association of Realtors®. Since early 2014, NAR has worked with the FAA and industry partners to integrate drones into the national airspace for commercial use. NAR wrote to the FAA on numerous occasions to weigh in on the final Small UAS Rule, and testified before Congress to support the use of drones in real estate. Below, please find some frequently asked questions regarding drones.

Q.        May I use a UAS to take aerial images of my real estate listings?

A.         Prior to the operational rues that were released on June 21, 2016, FAA laws and regulations generally prohibited the commercial use of UAS for the purpose of real estate marketing unless the operator had a pilot’s license or  was granted a Section 333 waiver from the FAA.

Under the final rule, however,  this is no longer the case. According to the FAA, the drone operator must meet the following requirements: 1) be at least 16 years old;  and 2) have a remote pilot certificate with a small UAS rating. Alternatively, operators  can fly the drone if directly supervised by someone with such a certificate.

Q.        How do I qualify for a remote pilot certificate?

A.         To qualify for a remote pilot certificate, an individual must either pass an initial aeronautical knowledge test at an FAA-approved knowledge testing center or have an existing non-student Part 61 pilot certificate. If qualifying under the latter provision, a pilot must have completed a flight review in the previous 24 months and must take a UAS online training course provided by the FAA. The TSA will conduct a security background check of all remote pilot applications prior to issuance of a certificate. To apply, visit:

Q.        Is insurance available for UAS operators?

A.         Yes.  Insurance companies offer coverage for UAS operators.  Be sure to ask any individual or company you are working with if they are insured for the UAS operation.  In addition, request that you be named as an additional insured for purposes related to the UAS operation.  

Q,.       If I choose to hire a photographer to take photographs with a drone, what can I do to limit my legal liability when hiring a UAS operator?

A.         Request that the UAS operator indemnify you against any action, suits, damages, losses, costs and expenses (including, without limitation, attorneys’ and fees and costs) arising from the UAS operation or the use of the related UAS images.

Q.        Where can I report any suspected improper use of a UAS? Is improper use of UAS a violation of the REALTOR® Code of Ethics?

A.         Any concerns regarding the unauthorized commercial use or unsafe operation of a UAS can be directed to the FAA or to local law enforcement authorities. While REALTORS® are encouraged to always abide by local, state, and federal laws, it is not a REALTOR® association’s role to adjudicate whether a REALTOR® has violated a local, state or federal law. 

Q.        Are there any restrictions if I just want to fly for fun?

A.         You don't need permission from the FAA to fly your UAS (aka drone) for fun or recreation, but you must always fly safely. To learn more about flying drones recreationally, please visit:

Q.         Where can I find additional information about UAS?