A solar installation is a significant investment for your customers—and the last thing they want is to have that investment threatened. However, in some cases, future changes on surrounding property—such as a new building on their neighbor’s property or the growth of vegetation on adjacent land—could jeopardize the amount of irradiance their PV system receives, and thus how much energy it produces.
However, there are some options for solar customers to avoid these kinds of unpleasant surprises. Solar easements give solar system owners the right to negotiate with neighbors for access to unobstructed sunlight on their solar systems, according to the Solar Energy Industries Association (SEIA).
In today’s article, we delve into what solar easements are, how they work, and some of the considerations that solar customers should be aware of if they are interested in pursuing easements. If this question comes up, whether in the sales process or in your post-sale relationship with customers, you’ll be well prepared to help.
Protecting against shading of solar systems
“Solar easements are important in ensuring that a homeowner’s solar panel system is producing optimal levels of electricity. Shade plays a large role in solar electricity production, and easements protect [homeowners] against that happening,” says Ken Pedotto, CEO of Solar Simplified.
Specifically, solar easements restrict what your neighbors can build or grow on their property; they prevent neighbors from blocking sunlight to your solar panels, he says.
Solar access laws vs. solar easements
Easements differ from solar access laws. Solar access laws limit private restrictions on solar energy projects, says SEIA. For example, rules from homeowners’ associations are a common challenge that restrict how solar systems on homes or businesses are installed. Such rules are generally created to uphold a community’s aesthetic standard.
When a solar system owner is grappling with solar access challenges from neighbors or homeowners’ associations, it’s important to ensure that the owner’s rights are protected. “To put it simply, a solar easement allows homeowners to legally protect their access to sunlight,” says Pedotto.
There are two types of easements: affirmative easements, the right to use land owned by another entity; or a negative easement, which restricts a property owner’s use of land.
A solar easement is viewed as a negative easement because it prohibits property owners from using their property in a way that prevents sun from reaching a solar energy system on a neighboring property.
Potential challenges of obtaining solar easements
It’s not necessarily easy to obtain a solar easement. That’s because the easement must be granted by a neighboring property owner—and the property owner can refuse to negotiate or grant the easement.
It’s also important to recognize that negotiating easements can sometimes be costly. “Legal costs could exceed the cost savings of the system if neighbors are not willing to grant the easement for free,” says EPIC. “Depending on the density of houses in a neighborhood, a prospective solar energy system owner might have to negotiate with several neighbors to ensure access to sunlight.”
Different states have different policies and protections regarding solar easements. For instance, the California Solar Rights Act gives local governments the ability to require solar easements in subdivision developments under certain circumstances, according to the Energy Policy Initiatives Center (EPIC). We delve into a few key state-level policies below.
New York State and Montana Laws
New York State is one of many states that protect a solar system owner’s right to ensure enough sun reaches the system. The state’s law states that solar easements should be created in writing. The document should include vertical and horizontal angles, provided in degrees, that identify the area that is the subject of the easement.
In addition, the law calls for terms and conditions under which the easement would be granted or terminated. New York State also expects the document to include any provisions for compensating the solar system owner if the other party interferes with access to solar.
Montana’s law is similar to New York State’s, calling for a written document that includes the location of the easement.
California solar protection laws
In California, two laws protect solar system owners: The Solar Rights Act and the Solar Shade Act, according to Go Solar.
The Solar Rights Act, AB 3250, passed in 1978, includes measures giving consumers access to sunlight and preventing shading. It also restricts efforts by homeowner associations and local governments to prevent solar system installations. The act gives citizens a legal right to a solar easement.
“Even though the law is more than 30 years old, the Solar Rights Act contributes significantly to California’s strong policy commitment to solar energy, and the policy rationale for the Act is relevant today and continues to support California’s solar energy policy initiatives,” says Go Solar.
California’s Solar Shade Act
While the Solar Shade Act (AB 2321) doesn’t create solar easements, it does provide some protection to solar system owners from shade created by trees on neighboring properties.
When trying to decide whether it makes sense to pursue a solar easement, it’s a good idea to look to the court system to uncover how such laws are implemented.
For example, one California court, in an unpublished portion of its opinion, held that a solar easement is only enforceable if it is in writing, according to EPIC.
A document that creates a solar easement should identify the location of the easement in “measurable terms,” the court said. It should also include “restrictions that would impair or obstruct the passage of sunlight through the easement” as well as “the terms or conditions, if any, under which the easement may be revised or terminated,” according to EPIC.
Local governments in California can establish solar protection ordinances
An ordinance could establish solar easements designed to ensure that each parcel has access to sunlight, especially across adjacent parcels or units in a subdivision. In most cases, it’s critical that the parties create a written document.
In the unpublished portion of its opinion in the Zipperer v. County of Santa Clara (California) case, the court specifically discusses the need for written documentation of solar easements, says EPIC.
“The Zipperers built a home with solar heating and cooling systems in the mid-1980s. In 1991, the County of Santa Clara purchased an adjacent property containing a small grove of trees,” says EPIC. The trees grew “significantly,” and began to shade the Zipperer home, which hurt the solar system’s output.
“In 1997, the Zipperers requested that the County trim or remove the offending shading trees. The County did not respond to the Zipperer’s request, and instead passed an ordinance exempting itself from California’s Solar Shade Control Act.”
The Zipperers sued the county, arguing a breach of contract associated with an “implicit” right to a solar easement. The Zipperers argued that the county had implicitly entered into a contract to provide a solar easement because the county allowed the homeowners to build a home according to county requirements.
However, the court said that a written, not “implicit” solar easement was needed. “Therefore, because the Zipperers did not have an express, written instrument, the court held that no solar easement existed.” The Zipperer case highlights how important it is that a solar easement be in writing.
Deciding if a solar easement makes sense
A written solar easement can offer assurance that a solar installation will continue to produce electricity at its full potential — particularly valuable in cases where there is potential for changes on surrounding property that could affect the system’s irradiance.
However, the ease of getting one of these agreements in place is an important consideration. As Pedotto says, “Not only can solar easements be costly, but they can cause conflict with neighbors.”
Pedotto suggests that an alternative to pursuing a solar easement in these cases is for homeowners consider community solar projects, which help bring neighbors together with shared access to local farms.