Solar Easements Real Property
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In exploring solar energy development, both residential and commercial, property buyers need to find out if they have sufficient access to sunlight to make the project worthwhile. Equally important, can anything be done to prevent obstruction of the sunlight in the future? The issue of solar access over the life of the system is critical to calculating its value.
Issues of solar access include neighboring air space, including the height and setback of adjacent buildings and trees. In most communities, existing zoning regulations for building setbacks, lot density limitations and height restrictions are sufficient to permit adequate sunlight access. But sometimes the zoning restrictions by themselves are not enough to protect a solar installation from shading by future growth. In that case, the best remedy, as permitted by the laws of a majority of states, is the creation of a solar easement between adjoining properties. The purpose of the easement is to get an agreement from the neighboring property owners that they will not do anything to obstruct sunlight. The easement typically addresses the setback and height requirements for buildings and limitations on vegetation growth. Solar easements seek to create adequate protections for solar operators while not creating hardship for adjacent property owners.
A solar easement is generally described as “a right, expressed as an easement, restriction, covenant, or condition contained in any deed, contract, or other written instrument executed by or on behalf of any landowner for the purpose of assuring adequate access to direct sunlight for solar energy systems” (Washington Code). A typical solar easement requires:
1) a description of the real property subject to the solar easement and a description of the real property benefiting from the solar easement (including vertical and horizontal angles);
Easements, like other conveyance documents, must be in writing. The easements must also be recorded in the office of the recorder of the county where the easement is granted in order to run in perpetuity with the property.
The legal descriptions of both the real property that benefits by the easement and the property burdened by the easement must be sufficient to describe the space over the burdened property which needs to remain unobstructed. The sun’s position in the sky varies throughout the year. The critical hours for protection are from 9:00 a.m. to 3:00 p.m., during which 90 percent of the sun’s radiation for the day falls on Earth. Based on that time period and the usual angles of the sun, the angles of possible obstruction can be calculated for purpose of the easement.
A property owner considering solar needs to address the issue of a solar easement early in the process since there is no common law right to sunlight. Solar easements are therefore necessary to protect a property owner who chooses to invest in a solar energy system. But solar easements are just one piece of the real estate equation when planning a solar system for a business or residence. Many communities have zoning regulations that may restrict the opportunity of installing a solar system.
Typically these obstacles can be addressed through the process of requesting a variance to allow for the installation. Since solar is relatively new, many neighborhood covenants and leases may not even contemplate the issue of solar but may generally have aesthetic provisions that impact solar installations.
Solar easements permit property owners to voluntarily agree with their neighbors to assist with solar development. Such easements are not only important to validate the future success of a solar development, but are truly essential if the project is to survive long term. Solar energy project owners, whether in a residential or commercial setting, must understand the concept of solar easements and include this concept as part of their overall solar energy development strategy.
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