Interest in solar
energy is growing as more and more homeowners, as well as businesses, are
taking long, serious looks at this alternative source of power. As with any
new technology, however, there are potential problems. For example, the
sun's rays must reach the solar collectors in order to produce energy from
either active or passive systems. If the sun were always directly overhead
there would be no problem. It is not, of course, and this brings up the
question of solar access -- the availability of sunlight to reach a
building's solar collectors. Resolution of this problem often involves
access across adjacent properties, which, in turn, involves a neighbor's air
space.Since the amount of unobstructed
sunlight reaching the solar collectors is critical to the efficient
operation of a solar system, the flow of sunlight to the system must be
assured.
In most systems it takes about six hours of direct
sunlight per day for maximum equipment efficiency. This varies, naturally,
according to the season, geographic location and the type of solar system
installed. Passive systems are especially dependent on direct sunlight. The
sun's rays cannot be reflected or diffused.
For the building owner, access questions involve
both the height and setback of adjacent buildings. That's where negotiated
agreements for solar easements come into sharp focus. If a neighbor's trees
grow high enough to cut off the sun early in the morning or late afternoon,
your solar system may not perform up to design specifications. The same
thing goes for structural heights. That's why the question of guaranteeing
access to sunlight is becoming an important part of property ownership. In
fact, it has been called the single most difficult legal issue connected
with solar energy use.
The most practical solution to the problem is the
negotiation of easements between property owners.
Under such an agreement, one property owner would
receive assurances from the other that the sunlight which travels over the
neighbor's property would always be available. The neighbor, and all
subsequent owners, would be restricted in building or planting trees which
could obstruct the sunlight.
After agreement, if such solar easements are not
properly recorded, problems could arise if the property is subsequently sold
and the new owners are either unaware of the easement or not in agreement
with its conditions.
Solar easements may have to be negotiated with
several different neighbors to assure adequate access to the sun throughout
the year. Such easements could negatively affect the future property values
of those neighbors.
California was one of the first states to enact
legislation to guide the establishment of solar easements. The California
Solar Rights Act of 1978 was passed to promote and encourage the "widespread
use of solar energy systems and to protect and facilitate adequate access to
the sunlight which is necessary to operate solar energy systems."
This statute prohibits any covenant, condition or
restriction which prohibits or restricts the installation or use of a solar
energy system.
A solar easement establishes certain land use
conditions agreed to by the property owners involved. Such an agreement
includes (1) a description of the dimensions of the easement, including
vertical and horizontal angles measured in the degrees or the hours of the
day, on specified dates, during which direct sunlight to a specified surface
or structural design feature may not be obstructed; (2) restrictions placed
upon vegetation, structures and other objects which would impair or obstruct
the passage of sunlight through the easement, and; (3) the terms and
conditions, if any, under which the easement may be revised or terminated.
It is important, of course, that all solar easements
be officially recorded, just as other uses and conditions are included in
public records. Otherwise, such an easement might not be noted during the
title search at the time of a real estate sale. Such an omission could
create serious problems at a later date when the new owners decide to make
structural or landscape changes that would affect the path of sunlight
across their property.