Residential Solar Rights

Is your neighbor a nuisance?

A legal nuisance, that is.

Did you know that if your neighbor plants trees or shrubbery that grow to block your solar energy system, you may have a cause of action against him? In 1978, California enacted the Solar Shade Control Act (Cal. Pub. Res. Code §§ 25980-25986), which, among other things, prohibits your neighbor from blocking 10% of your solar collector at any given time between 10am to 2pm. See Cal. Pub. Res. Code § 25982.

With demand for solar energy on the rise, and with increasing numbers of homeowners who have installed (and will continue to install) solar panels, Californians ought to know about their solar rights.

Leading the Way

California is paving the path when it comes to solar energy. You would know that if you haven't been living under a rock, or your neighbor's shrubbery. According to the Solar Energies Industries Association (SEIA), California is ranked first among "Solar States" based on the cumulative amount of solar electric capacity installed through 2016. (https://www.seia.org/state-solar-policy/california-solar).

California's current solar electric capacity is enough to power over 5 million homes and the market here employs over 100,000 people. (https://www.seia.org/state-solar-policy/california-solar). Not only is California already first in solar electric capacity, but its solar growth projection is also first in the county. (https://www.seia.org/state-solar-policy/california-solar). In short, business is booming.

Back in 2008, California announced the Residential New Construction Zero Net Energy Action Plan (the "Plan"). (www.cpuc.ca.gov/WorkArea/DownloadAsset.aspx?id=5307). The Plan committed California to requiring all newly constructed homes to achieve zero net energy beginning in 2020. (www.cpuc.ca.gov/WorkArea/DownloadAsset.aspx?id=5307). Zero net energy (ZNE) means that the building generates enough of its own energy from a renewable source to equal what it uses over the course of a year. New legislation continues to roll out to implement California's goal. Santa Monica was the first city to put the Plan into action. On May 1, 2017, Santa Monica's ordinance requiring all new residential construction to be ZNE went into effect. (http://www.smobserved.com/story/2017/04/03/news/council-approves-extensive-seismic-retrofitting-zero-new-energy-law/2794.html). Santa Monica's overarching and robust goal is to release zero carbon by 2050. (http://www.smobserved.com/story/2017/04/03/news/council-approves-extensive-seismic-retrofitting-zero-new-energy-law/2794.html).

Existing homes are important to the cause as well. The California legislature recognized that "there is no realistic path to achieving the state's aggressive energy efficiency targets and carbon emissions goals without accomplishing large-scale improvements to the existing building...." (http://www.energy.ca.gov/2012publications/CEC-400-2012-015/CEC-400-2012-015.pdf). Existing buildings represent a particular set of challenges because each building and each occupant is very diverse and unique. (http://www.energy.ca.gov/2012publications/CEC-400-2012-015/CEC-400-2012-015.pdf).

The benefits of solar energy building upgrades must be compelling enough to motivate a property owner to take action. (http://www.energy.ca.gov/2012publications/CEC-400-2012-015/CEC-400-2012-015.pdf). The government has implemented financing and incentive programs to encourage homeowners to install solar energy systems. Furthermore, the price of installing solar panels has been decreasing every year while the technology of harnessing the sun's rays has been improving. In fact, the cost of solar has dropped by 55% over the last 5 years. (https://www.seia.org/state-solar-policy/california-solar). In any case, the use of solar energy to achieve ZNE buildings is going to grow, and with that so will potential conflicts between neighbors.

Solar Shade Control Act

Not only are new homes in California either already required, or are going to be required, to be ZNE, but owners of existing homes are also encouraged to jump on the solar energy bandwagon and install systems too. This increase in demand for solar energy systems could cause a hotspot of litigation over solar rights. Whether you're required to install a solar collector in the process of constructing your new home or you decide to willingly invest in this technology, an important factor in the installation is current and future access to unobstructed sunlight. Shade from vegetation growth can affect the amount of sunlight reaching a solar energy collector. California anticipated this dilemma and addressed it by introducing the Solar Shade Control Act (the "Act").

The stated public policy of the Act is as follows:

"It is the policy of the state to promote all feasible means of energy conservation and all feasible uses of alternative energy supply sources. In particular, the state encourages the planting and maintenance of trees and shrubs to create shading, moderate outdoor temperatures, and provide various economic and aesthetic benefits. However, there are certain situations in which the need for widespread use of alternative energy devices, such as solar collectors, requires specific and limited controls on trees and shrubs." Cal. Pub. Res. Code § 25980

This statement reflects the delicate balance of interests at stake. On the one hand, planting trees and various shrubbery helps California achieve its environmentally friendly goals, but could also deter people from investing in renewable energy sources to reduce carbon emissions. The Act tries to balance these interests by creating a new "Do" and "Don't" list for neighbors.

Definition of "Solar Collector"

In order to benefit from the protection of the Act, your system must fall within the definition of "solar collector," which is "a fixed device, structure, or part of a device or structure, on the roof of a building, that is used primarily to transform solar energy into thermal, chemical, or electrical energy." Id. at § 25981. The solar collector's purpose must be water heating, space heating and cooling, or power generation. Id. A system installed on the ground can also qualify if it could not be installed on the roof due to inappropriate roofing material, slope of the roof, structural shading, or orientation of the building. Id.

Restrictions

After the installation of a solar collector, a neighbor shall not allow her trees or shrubs to shade more than 10% of the collector any time between the hours of 10 a.m. and 2 p.m. Id. at § 25982. A key fact here: this only applies to trees and shrubs planted after the system was installed. Id. at § 25982, § 25984(a).

Nuisance

A tree or shrub maintained in violation of the Act constitutes a private nuisance if the neighbor fails to remove or alter the tree or shrub after receiving written notice from the owner of the solar collector. Id. at § 25983.

Exemptions

As noted above, a tree or shrub planted before the installation of the solar collection is exempt from violation. Id. at § 25984(a). Other exemptions include the following: a tree planted on timberland or on land devoted to the production of commercial agricultural crops; a tree or shrub planted to replace one that was growing prior to the installation of a solar collector; and a tree or shrub subject to a city or county ordinance. Id. at § 25984(b)-(d). Finally, a city or county may adopt an ordinance exempting their jurisdiction from the provisions of the Act. Id. at § 25985(a). This exemption applies only to trees planted and maintained by the city or county itself, and not to trees owned by private citizens. See Zipperer v. Cty. of Santa Clara, 133 Cal. App. 4th 1013, 1025, 35 Cal. Rptr. 3d 487, 495 (2005), as modified (Oct. 28, 2005). The following is a non-exhaustive list of California jurisdictions that have exempted themselves from the Act: Butte County, City of Santee, City of Shasta Lake, Sacramento County, and Santa Clara County. (https://lib.sandiego.edu/law/documents/centers/epic/100329_SSCA_Final_000.pdf.)

Solar Easements

The Solar Shade Control Act protects a property owner from a neighbor's shrubbery, but can it protect against someone erecting a building on an adjoining property? No. Can property owners protect themselves from this situation? Yes, indeed.

The best way to ensure permanent access to sunlight is to obtain a solar easement. An easement allows the holder to make use of land that is not theirs. (https://lib.sandiego.edu/law/documents/centers/epic/Solar%20Rights%20Act-A%20Review%20of%20Statutes%20and%20Relevant%20Cases.pdf.) For example, many utility companies have easements over people's property to run pipes or electric wires. A solar easement provides the right to receive sunlight across the property of another for a solar energy system. Cal. Civ. Code § 801.5(a). Therefore, a solar easement restricts what your neighbor could build or grow on his land if it would block the sunlight that hits your solar panels. A solar easement should be in writing and recorded so that if your neighbor sells his house, the future owner is on notice that you possess this easement. (https://lib.sandiego.edu/law/documents/centers/epic/Solar%20Rights%20Act-A%20Review%20of%20Statutes%20and%20Relevant%20Cases.pdf.)

The easement must also, at a minimum, include a description of the dimensions of the easement expressed in measureable terms, the specific restrictions, and the terms and conditions under which the easement may be revised or terminated. Cal. Civ. Code § 801.5(b).

Homeowners Associations

For those that live in condos and planned communities, the homeowners association ("HOA") provides the rules and regulations that govern many aspects of ownership, including the installation of solar collectors. The California legislature wanted to ensure that HOAs could not unreasonably stand in the way of a homeowner installing and investing in solar energy. Therefore, the legislature enacted a law providing that a covenant, restriction, or condition in a deed, contract, or security interest (i.e. CC&R's) cannot effectively prohibit or restrict the installation or use of a solar energy system. Cal. Civ. Code § 714(a). However, HOAs are allowed to restrict installation in common areas and also require prior approval, maintenance and repair of building components affected by the installation, and indemnity or reimbursement to the association for loss or damage caused by the solar energy installation or use. Id. at § 714.1.

Conclusion

With the demand for solar energy systems increasing, related litigation issues are bound to arise as well. Ensuring current and future access to unobstructed sunlight is pivotal whether someone decides to install a solar collector to abide by the law or as a personal investment. Every homeowner has certain solar rights. Knowing those rights can guarantee you reap every benefit from your investment.

Theodore L. Senet is a senior partner, and Samantha R. Staroba an associate, at Gibbs Giden Locher Turner Senet & Wittbrodt LLP, which has offices in California and Nevada. Mr. Senet's areas of practice have been insurance, construction, environmental and real property law. Ms. Staroba's practice consists of construction, business, and commercial litigation matters.