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FAA Waiver Statistics

The FAA has Granted more than 4000 Part 107 Waivers

INCREASED FAA APPROVAL OF UAS WAIVERS

Since the implementation of Part 107 of title 14 of the code of Federal Regulations, also known as the small unmanned aircraft systems UAS rule. It created a regulatory framework that enabled civilian and commercial operators of UAS. UAS weighing 55 lbs. or less.

Generally, Part 107 requires operators to fly under 400 feet above ground level, within visual line of sight (VLOS) and only during daylight hours. UAS operators who want to fly outside the requirements of Part 107, such as to conduct beyond line of sight or nighttime operations, may request a waiver from the FAA.

Almost four years later, the FAA has granted more than 4000 waivers to UAS pilots in all 50 states. The number of FAA waivers granted per quarter reached an initial peak in the beginning of 2017 as pilots vied to be the first to fly under these new regulations. However, as the FAA worked through the backlog, the approval rate rapidly declined by the end of the year since then, the number of waivers issued per quarter has steadily increased with a historic peak in the first quarter of 2020.

MAJORITY OF WAIVERS ALLOW UAS FLIGHTS AT NIGHT

Almost 95% of currently active waivers enable UAS flights at night. The other 5% allow more advanced flight profiles like those over people, in excess of 100 mph, higher than 400 feet above ground level, under limited flight visibility, or with decreased distance relative to clouds.

FAA waivers can also modify the ground control requirements, thus enabling an operator to concurrently control multiple UAS, to fly without the required visual observer support to control the aircraft from a moving vehicle. Waivers are granted to “responsible individuals” who may or may not be linked to an associated organization on the waiver permit. Nearly 57% of waivers are granted to an individual with an associated organization. Businesses that operate UAS for financial gain are categorized as service organizations and account for over 72% of waivers granted to individuals associated with an organization many of these businesses offer aerial imaging solutions for a range of applications including real estate, landscape photography, infrastructure inspections, and agriculture environmental surveys.

MAJORITY OF WAIVERS ARE FOR FIRST RESPONDERS OR SMALL COMPANIES

First responders comprise 19% of the organizations granted waivers most of which enable nighttime operations for search and rescue or firefighting. More than 87% of entities granted a Part 107 exemption generate less than $1,000,000 in annual revenue. As such, it is important that the waiver process be standardized and easy to navigate to ensure that small businesses with minimal resources are able to take advantage of the benefits enabled by advanced operations.

If your organization needs a Part 107 Waiver then contact the Unmanned Aviation Systems Law Center at 623-252-6884 or message us HERE.

Government Risk in Space

What is the American Government’s Risk Exposure to Private Space Launches?

Under the “Convention on the International liability for Damage Caused by Space Objects” (the “Convention”) the United States faces liability for damage caused by any “object” launched from American soil, even if launched by private entity.

The preamble to the Convention states:
Recognizing the need to elaborate effective international rules and procedures concerning liability for damage caused by space objects and to ensure, in particular, the prompt payment under the terms of this Convention of a full and equitable measure of compensation to victims of such damage,

Believing that the establishment of such rules and procedures will contribute to the strengthening of international co-operation in the field of the exploration and use of outer space for peaceful purposes.

space x rocket crashes
Space X SN9 exploded on impact during an attempted landing.

The pertinent Articles of the Convention state:
Article I. For the purposes of this Convention:
(c) The term “launching State” means: (ii) a state from whose territory or facility a space object is launched.

Article II.
A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight.

Article VIII.
A State which suffers damage, or whose natural or juridical persons suffer damage, may present to a launching State a claim for compensation for such damage.

The plain language of the Convention makes it clear that the U.S. government is liable for damage caused by any object launched into space from its soil—even if the object was launched by a private entity!

In 1978 a faulty Soviet Union satellite prematurely reentered the atmosphere causing radioactive debris to scatter over northern Canada. This accident was an environmental disaster and required extensive cleanup that became known as Operation Morning Light. Canada billed the Soviet Union a little more than C$6M of which they eventually paid C$3 million.

Unintended Consequences

As the cost of launching objects into space decreases, the number of launches by private entities will continue to increase. For instance, there are dozens of small, privately held companies that have launched hundreds of satellites into space. Additionally, companies are preparing to launch civilians into space. As the number of launches increase, so do the odds of an accident for which the U.S. government would be responsible. I do not believe that signatories to the Convention intended to be liable for the actions of individuals who launched objects from their soil and so a change needs to be made. Private Unmanned Aviation Systems insurance should be required by the FAA.

Conclusion

This issue is relevant to every country in the world, whether they are launching objects into space or not and either a change needs to be made or a conscientious decision to take on the risk must be made.

Contact the Dunaway Law Group for help with your UAS needs at 623-252-6884 or message us HERE.

Water Well Agreements Arizona

Shared Water Well Agreements

What are your rights to water that comes from a shared well that is not located on your property? For most people, the answer is in their written well share agreement.

The first question to be considered is—which state regulating body grants me the right to access and use groundwater? The Groundwater Management Act “GWMA” of 1980 established that groundwater, is common property of the citizens of Arizona and the management of it was under the Arizona Department of Water Resources, ADWR. All groundwater withdraws in Arizona must come from a water well that was permitted by ADWR.

Owning the land or having an easement right does not give you the right to extract groundwater. The right to extract groundwater in Arizona only comes from having a permitted well.

Therefore, a well share agreement to share the water from a legal source should always refer to the well by its ADWR registration number.

On Whose Land Does is the Well Located?

The second question to be considered is: whose land is the well located on? If the well is located on land that is titled in the name of one of the members of the well share group, then that person owns the well. Drilling and constructing a water well creates a permanent change to real property and that improvement cannot be separated from the land, therefore, well becomes a part of the real property. Groundwater is not real property. Percolating water beneath the earth in Arizona is called groundwater and in it is considered “public” property managed by the ADWR.

If the well is located on your neighbor’s lot, and they hold title to the land in their name, the well should be registered with the ADWR in their name. The ADWR recognizes that shared wells can, and should be, registered in the name of the person or party that is responsible for its management. The ADWR has created Form 55-73 , for the purpose of registering shared wells in the name of a managing or operating group. Registration of a well with the ADWR does not establish ownership of the well. A.R.S. § 45-593(c), requires that the owner of the land keep the ADWR up-to-date as to who owns the land and where the well is located. For this purpose, the ADWR created Form 55-71(a), request to change well information.

water well arizona

well is owned by those named on the deed

When a shared well site is situated on a parcel of land that is deeded and recorded in the appropriate Arizona county, the well is owned by the names listed on that deed. The wording of many well share agreements may grant several owners an undivided interest in into a small piece of land, and thus an undivided real property interest in the well. When this wording is used on the deed and in the shared well agreement, the assessors map should show a smart parcel of land with its own Assessor’s Parcel Number (APN). In this case, the well should be registered in the name of all parties listed on the deed.

If you’re well share agreement is worded in the same manner as the deed, you own an undivided piece of this land which means that you are also subject to a portion of the yearly property taxes or improvement assessments on this parcel. Once water is pumped to the surface from a registered well, and placed in the storage tank, it becomes the personal property of the owners of the land. So, if you own a percentage of the land via the deed, then you also own a percentage of the water stored on it.

easement rights & ownership rights

Some well shared agreements are structured such that the participants receive only an easement right to access the land where the well was located. There is a major difference between owning an undivided interest in a piece of real estate, partial ownership, versus having just a vested interest in someone else’s real property granted by an easement. An easement is a vested interest in someone else’s real property and not an undivided fraction of title to the land into the well.

An easement will typically state that it was granted for a specific purpose. If your well share agreement is an easement right of entry you should verify that you have a right to do more than merely access someone’s land. The wording of that easement may, by exclusion, not grant you are right to receive and share the water, located on that property. An easement is a vested interest only in someone else’s real property for a specific purpose and groundwater is not a part of real property.

water well agreements- pre-1980

Many well water agreements in place today were written prior to 1980, when groundwater was more loosely considered to be a part of the real property. These older versions often refer strictly to the land and not to the water or the registered well. Well share agreements that refer strictly to a piece of real estate, and do not state the registration number of a well, may not be granting you a legally defensible right to the groundwater. A registered water well is the only legal right to the public groundwater resource and it is granted only to the permitted owner of the land. This is a very compelling reason why all well share agreements should refer to the water well being shared by the registration number.

Well share agreements should define a legal right to groundwater from a registered well. A well share agreement is a legal contract between two or more persons and it can be enforced by the courts. Not complying with the well share agreement can constitute a breach of contract.

If you have questions about an existing water well agreement or would like to create a water well agreement then contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.

Terminate an Easement

Can an Easement be Legally Terminated?

What is an easement?– An easement is a right cross over/under/through the property of another person.

Can an easement be terminated? Yes, in Arizona there are four (4) basic ways an easement can be terminated.

 The four basic ways to terminate an easement are:

  • Expiration of an Easement: In Arizona, an easement can be terminated by the expiration of an agreed upon time event. on I agreement my abandonment via the doctrine of merger some easements are granted for a finite period of time when the time. Is not The easement is set to expire easements of this sort are said to terminate by expiration because they are granted. 10 years at the end of the 10 year period easement will terminate.
  • Agreement to Terminate an Easement: In Arizona, some easements are terminated by agreement of the owner of the easement. Termination by Agreement happens when the owner expressly conveys the easement back to the grantor. For example, if Simon owns an easement over Garfunkel’s land, and Garfunkel requests that Simon release the easement, Simon may then execute the termination agreement and convey the easement back to Garfunkel. Once this agreement is signed by Simon, then the easement in Arizona land will terminate.
Old abandoned building and rail.
  • Abandonment of an Easement: In Arizona, an easement can be terminated when the owner abandons his right to the easement. Usually mere nonuse of an easement is not enough to qualify for termination. In Arizona, an easement may be terminated by abandonment only if the owner makes a clear, unequivocal, decisive act to abandon the easement.

What is a decisive act to abandon? A decisive act to abandon an Arizona easement could include creating a new alternate road to enter the property or putting fending/wall or some other time of barrier across the easement.

  • Merger of Easement and Land: In Arizona, an easement may be terminated by the doctrine of merger. Under the doctrine of merger, if one party acquires the property subject to and benefited by an easement. The easement will have been said to merge with the other rights held by the owner.

This makes sense,  because an easement is the right to cross over the property belonging to another person. However, if you own the land the easement will merge into the land because it is impossible to have an easement over your own property.

Again, in Arizona, are the four methods to terminate an easement. Understanding easements and how they affect you can be very confusing and so f you have questions about an easement on your Arizona property then contact the Dunaway Law Group at 480-389-6529 or by sending us a message HERE.

Evictions and Ownership Disputes

Arizona law is clear that eviction cases are designed to address the issue of possession and not the issue of property ownership. The limited scope of a forcible entry and detainer action has been strictly defined by Arizona statute. A.R.S. § 12-1177(A) states in relevant part:

On the trial of an action of Forcible Entry or Forcible Detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.

A.R.S. 12-1177(A)

Evidence offered to the Arizona Superior Court showing anything other than who is entitled to possess the property will be excluded from an eviction hearing. This means a defendant who wants to make a claim for ownership of the rental property must file a quiet title action and not raise the issue during an eviction hearing.

Proof of property Ownership 

The Arizona Superior Court’s inquiry into property ownership is limited to the extent that Plaintiff holds title to the property in dispute. If the Plaintiff – Arizona Landlord’s name appears on the trustee’s deed then the Court should not inquire into ownership any further.

The issuance of the Trustee’s Deed to Plaintiff is conclusive evidence that all statutory requirements for the Trustee’s Sale were satisfied and that Plaintiff has the right to possession of the Property.

A.R.S. § 33-811(B) further provides:

…the Trustee’s deed shall raise the presumption of compliance with the requirements of this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing, and posting of the notice of sale and the conduct of the sale.

eviction cases are summary remedies

Arizona courts have held that litigation as to the validity of title “would convert a forcible detainer action into a quiet title action and defeat its purpose as a summary remedy.” Curtis v. Morris, 186 Ariz. 534, 535, 925 P.2d 259, 260 (1996).

For example, in Merrifield v. Merrifield, 95 Ariz. 152, 154, 388 P.2d 153, 155 (1963), the plaintiff held title to property pursuant to quitclaim deed which was valid on its face. The lower court nonetheless inquired into the merits of that title and refused to find the defendant guilty of forcible entry and detainer. The Arizona Supreme Court reversed the lower court’s ruling because plaintiff was entitled to possession as the title holder and pursuant to A.R.S. § 12-1177, the trial court was prohibited from considering the merits of the plaintiff’s title. Accordingly, any evidence offered by Defendants to raise extrinsic issues or disprove Plaintiff’s title must be excluded.

In another case demonstrating the Superior Courts inability to inquire into ownership in a forcible detainer (see Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946), the Arizona Supreme Court stated: “[T]he statutes of this state make that very plain and indicate quite clearly that the right to actual possession is the only issue to be determined in such an action.” Id. at 204, 397. The court also discussed the legislative intent in limiting the scope of a forcible entry and detainer action stating:

The object of a forcible entry and detainer action is to afford a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the defendant were permitted to deny his landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law. And for the same reason, the merits of the title may not be inquired into in such an action, for if the merits of the title and other defenses above enumerated were permitted and the court heard testimony concerning them, then other and secondary issues would be presented to the court and the action would not afford a summary, speedy and adequate remedy for obtaining possession of the premises.

Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946))

Id. at 204-05, 397. Because the trustee’s deed is conclusive evidence of Plaintiff’s title under A.R.S. § 33-811(B), and because the court is prohibited from inquiring into the merits of that title under A.R.S. § 12-1177(A), judgment must be rendered in favor of Plaintiff regardless of any defense of ownership the Defendants may raise.

Ownership Disputes in the Justice Court

The ownership of property and their interaction with evictions can become very complex. The above article discusses issues of ownership disputes and evictions in the Superior Court, however, the rules that apply to ownership disputes and evictions in the Justice Court (where most evictions take place) are completely different.

A.R.S. § 22-201(D) addresses this issue:

Justices of the peace have jurisdiction to try the right to possession of real property when title or ownership is not a subject of inquiry in the action. If in any such action the title or ownership of real property becomes an issue, the justice shall so certify in the court record, at once stop further proceedings in the action and forward all papers together with a certified copy of the court record in the action to the Superior Court, where the action shall be docketed and determined as though originally brought in the Superior Court.

A.R.S. § 22-201(D)

A.R.S. § 22-201(F) adds further clarification:

In actions between landlord and tenant for possession of leased premises, the title to the property leased shall not be raised nor made an issue.

A.R.S. § 22-201(F)

Occasionally, when a case is sent to the Superior Court an Arizona landlord will respond, “but my tenant doesn’t own the property! It’s mine! They’re just lying! Why is the judge believing them? What could have been done to prevent this?”

While a landlords’ frustration is understandable it’s important to remember that the Justice Court judge is just following the law. Just because a Justice Court Judge moves a case into the Arizona Superior Court system does not mean they believe the tenant. Additionally, it does not mean that the tenant did something right or that we made some kind of a mistake. It simply means the Judge is following the law.

For help with your Arizona landlord – tenant matters contact the Dunaway Law Group at 480-389-6529 or message us HERE.