Are Solar Easements Enforceable?

Easements by Simon Offord, Esq.

We previously wrote about view easements, a question we are often asked about.  Notably, many clients believe they should have a right to view, but as our prior article discusses, the answer in that scenario is oftentimes “no.”  However, the legislature has made an effort in recent years to encourage the use of solar power, including by allowing easements for the same, as well as preventing prohibitions to their installation.

Solar Easements can be Enforceable if Done Correctly

The California Solar Rights Act provides specific formalities for the creation of “solar easements.” Solar easements are generally defined as easements that provide for the right to receive sunlight across the real property of others for solar energy systems (as defined by the Act). 

Under the Act, an instrument creating a solar easement must, at a minimum, include all of the following:

  1. A description of the dimensions of the easement expressed in measurable terms, such as vertical or horizontal angles measured in degrees, or the hours of the day on specified dates during which direct sunlight to may not be obstructed, or a combination of these descriptions;
  2. The restrictions placed on vegetation, structures, and other objects that would impair or obstruct the passage of sunlight through the easement;
  3. The terms or conditions, if any, under which the easement may be revised or terminated.

These requirements are more particular than requirements for most common easements (such as access easements, utility and well easements etc.), and thus it is important that if one is crafting such an easement to ensure these requirements are met. 

A valid “solar easement” is known as a “negative easement,” which is one that restricts or limits the use of the burdened property.

HOAs Cannot Restrict Solar

The Solar Rights Act also prohibits covenants, restrictions, or conditions in deeds, contracts, security instruments, or other instruments affecting real property (most commonly, CC&Rs for HOAs) that effectively prohibit or restrict the installation or use of solar energy systems.  This would include such restrictions that would prevent installation of solar panels for aesthetic reasons. Any such CC&Rs are void and unenforceable, although provisions that merely impose reasonable restrictions on solar energy systems are valid and enforceable.

Other Protections for Solar under California Law

In addition, California’s Government Code Section 65850.5 states that local agencies cannot adopt ordinances that create unreasonable barriers to the installation of solar energy systems, including, but not limited to, design review for aesthetic purposes. 

Finally, the Solar Shade Act provides some limited protection to solar energy system owners from shading caused by trees and shrubs on adjacent properties. The law seeks to prevent a property owner from allowing trees or shrubs to shade an existing solar energy system installed on a neighboring property, provided the shading trees or shrubs were planted or grew after the solar collecting device was installed.

Thus it is clear that, along with many of the financial incentives offered by the government, there is also strong support and protection of operating and maintaining solar power for homeowners. 

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