Right to Solar Energy

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 What Is Real Estate And Property Law?

Real estate and property law govern a considerable variety of topics, including but not limited to:

  • Buying;
  • Selling;
  • Using; and
  • Leasing residential or commercial property.

In terms of disputes associated with real estate and property law, common examples of disputes include:

Real estate and property law also govern the financial aspects of real property, such as:

Additionally, wills and trust law may be covered under the complete umbrella of real estate and property law. However, they may also be separated as their own minor subtopic of estate law.

As previously mentioned, issues associated with zoning or land use can occur. Generally speaking, most localities have a planning or zoning committee. This committee assists in regulating land use, and when such a committee passes a zoning ordinance, all properties within that locality must adhere to them.

The exception would be one of the following:

  • Variance: A property owner may apply for a variance when “such a scenario exists.” What this means is that if the variance is granted, the property will be excused from conforming to the zoning ordinance. The zoning committee will have full discretion over whether or not to grant the request for a variance. As such, each individual zoning committee may have its own eligibility criteria on which they base their decisions; or
  • Non-Conforming Use: When a new zoning ordinance prohibits using property in a spefiic way, property owners that have already been using their property in that manner will generally be able to continue to do so, despite the new ordinance. It will be as if they were “grandfathered in.”

What Is Solar Energy? Are There Any Legal Restrictions Placed On The Use Of Solar Energy?

Solar power refers to the energy from the sun that is then converted into either thermal or electrical energy. As an energy source, solar energy is considered to be the cleanest as well as the most abundant renewable energy source currently available. Solar energy technologies can be utilized for generating electricity, as well as heating water for many different uses.

The use of solar energy is becoming frequently more common throughout the United States. Recently, the U.S. Department of Energy made a statement claiming that solar energy is more affordable and widely available than compared to the past.

However, if you would like to install solar panels on your own property, you will most likely be subject to specific rules and regulations based on your locality’s zoning restrictions. Such requirements vary widely between the states, and can even vary widely based on your specific Homeowner’s Association.

Generally speaking, the amount of sunlight you will need to fuel the solar panels must pass through the airspace of your neighbors. This is because the United States does not receive sunlight from directly overhead. Because of this, if you were to install solar devices such as solar panels, your neighbors could technically be restricted in the way in which they can use their land.

What Is Airspace? What Are Airspace Tenant Rights?

Because solar energy rights are contingent upon airspace rights, it is helpful to discuss what airspace is and what airspace tenant rights are. In terms of property law, airspace refers to the air that is above a landowner’s property. An example of this would be the space over the top of your house, or from the ground up in your yard. Because this is technically considered to be a separate piece of property, there is such a thing as having air rights.

Generally speaking, if a person owns land, they have the right to occupy and use the airspace. This is why homeowners can legally do things such as:

  • Adding a fence around the perimeter of their house;
  • Building a shed in their backyard;
  • Putting a large sign in their front yard; and
  • Adding an addition to the top of their building.

To put it simply, owning land gives you the right to occupy the airspace above or below the property, without interference from another person. Whether there is a limit to the extension of airspace that you can use depends on the state in which you live. Most states have determined that the landowner has rights to as much space above or below the property as they can occupy or use.

Tenants generally enjoy the same air rights as a landowner while they are renting.. However, there will obviously be some limitations to this as there is a landlord involved, and the tenant does not own the property. An example of this would be how the lease may place restrictions on how a tenant could use the airspace. If the lease prohibits tenants from building new permanent structures on the land, they obviously cannot utilize the airspace for these purposes.

Additionally, if a tenant were to use airspace for illegal purposes, this would be an issue as well. An example of this would be if a tenant is renting a house in an area where burning fires outside is prohibited due to high risk for uncontrollable wildfires to start. If the tenant has a bonfire, this would not be considered a proper and legal use of their airspace, and their rights would be limited.

Tenants should also remember that upon completion of their lease, all airspace rights will terminate. If the lease automatically renews until one party expresses the intent to end the lease, airspace rights enjoyed will continue until the lease legally terminates.

How Can I Obtain Access To Solar Energy?

In order to legally obtain and maintain access to solar energy, you must enter into some type of agreement granting you access to your neighbor’s airspace. Some examples of ways to do so include:

  • Entering Into An Easement: This is a written agreement that would give you limited use over part of your neighbor’s property. In this case, this would be the area needed to obtain access to solar energy sources. By entering into a written agreement with your neighbors, you can prevent your neighbor from doing anything that would block your access to solar energy. If you are considered doing so, the following information will likely need to be included in the easement agreement:
    • Horizontal and vertical dimension descriptions;
    • Time restrictions;
    • Transferability of the easement to a person who purchases the land;
    • Enforcement of the easement;
    • Dispute resolution; and
    • Remedies should the easement agreement be violated.
  • Entering Into A Covenant: This is another type of agreement that would limit the use of your neighbor’s property by providing the benefit of solar energy sources to your property. A common concern that is addressed through covenants would be the aesthetics of the property. This could result in restrictions placed on what type of solar devices can be constructed; and/or
  • Permit: Some states have established procedures for private landowners to obtain a permit in order to access solar energy. Obtaining a permit would protect you from facing interference with solar access, and is often a more simple process when compared to creating an easement or covenant.

Out of all of these options, solar easements are becoming increasingly popular and the most common way to begin the process of installing solar panels.

How Can I Get Solar Panels If I Am Under A Homeowners Association?

If you are governed by a Homeowners Association, or HOA, you could experience some issues when trying to install solar panels. This is because many HOA’s will require you to submit paperwork, explaining what you will be doing and how long the process will take.

However, because of the growing popularity of solar power and legislation as well as solar energy incentives, many HOAs are not allowed to ban solar panels if you live in a state that has enacted a solar access law. An example of this would be the Solar Rights Act, which forbids HOAs and property owners associations from prohibiting outright a property owner from installing a solar energy device as defined by state code.

Do I Need An Attorney To Assert My Right To Solar Energy?

If you are experiencing legal issues associated with your right to solar energy, you should contact an experienced and local property lawyer. An attorney can help you understand your state’s specific laws and what your rights and options are according to those laws. Your property attorney will also be able to represent you in court, as needed, should any legal issues arise.

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