In the face of rising utility bills in a tough economy, many homeowners are considering solar power. Although solar panels can cost tens of thousands of dollars, various state and federal tax credits can lower the cost significantly. And despite the large up-front investment, panels have been shown to pay for themselves over time.
Nevertheless, a solar project is expensive and time-consuming. Before you undertake that installation, you need to ensure permanent access to a key ingredient: sunlight. To state the obvious, panels require direct access to sunlight to generate energy. If your neighbor decides to add a story to his house, plant a large tree in his yard, or built a tall fence, your investment will have been for naught. How can you prevent this?
An easement is, broadly speaking, a right to use someone else’s land for a particular purpose. You might get an easement over a portion of your neighbor’s land if, for example, your home were land-locked with no access to the road. Similarly, a utility company might get an easement to enable it to run certain pipes underneath your property.
Unlike licenses, easements are often formal; they are recorded on the deed of a particular property, and publicly discoverable by future buyers. In other words, you can sell an easement to someone and its existence would be recorded with the county clerk.
A solar easement is a bit more complicated than a traditional easement for a pipe under your yard or a walkway from your home. A solar easement restricts what your neighbor can build or grow on his property within his or her airspace, because the neighbor cannot block sunlight to your solar panels.
Solar easements are the best method of assuring that you will have solar access, even if your neighbor sells the home, since easements are a permanent part of the parcel’s property record. (While you could ask your neighbor to refrain from planting a tall tree blocking your panels, this promise would not bind a buyer of the house who moves in next year).
Unlike a power company, which can claim an easement under your land by necessity, solar easements are voluntary. This means you can’t force your neighbor agree to a solar easement; you will likely have to provide what's known in contract law as "consideration," meaning some form of payment.
While an attorney is not necessarily required to draft your easement agreement with your neighbor, legal counsel might be helpful. Keep in mind, this is essentially a sale of property – not, perhaps, as complex as buying a home, but there does have to be a reasonable degree of sophistication among those involved in the transaction.
The agreement must be written and recorded with the county clerk in order to be legally binding. For example, an easement should include a description of the dominant property that will benefit from the easement (your property) and the subservient property that will be encumbered by the easement (your neighbor’s property), describing with specificity the angles that must remain open to sunlight. The document must also describe the specific height restrictions on walls, buildings, and plants, as unambiguously as possible.
You might also include a provision describing the circumstances under which the easement can be modified or terminated.
Remember, even if you can successfully convince your neighbor to grant or sell you an easement, there might be other regulations to consider. Solar energy is a relatively new trend among homeowners, which means that many neighborhood regulations and local statutes do not necessarily contemplate them. Just in case, before you purchase expensive panels, check with your local neighborhood association or community board to see whether it has placed its own requirements on your ability to install solar panels on your property.
In short, before you jump on the solar bandwagon, make sure to acquire the proper solar easements from your neighbors to ensure that your panels will be reliable access to sunlight for years to come.