Solar Skyspace Easements: Don’t Be Left in the Dark

Imagine investing in a solar installation on your property, only to see it sitting in the shadow of your neighbor’s new house a few years later.  As explained in an earlier blog post (Are you Considering Solar for Your Business), your neighbor’s property rights may affect your solar installation’s productivity.  Luckily, there is a statute in New Hampshire, RSA 477, which provides a framework for landowners to establish solar skyspace easements.  A solar skyspace easement can protect your investment by limiting your neighbor’s right to obstruct sunlight from passing through a certain area of the neighbor’s property, establishing your right to an unobstructed space between your solar installation and the sun.  Landowners considering investing in solar may find it necessary to negotiate a solar skyspace easement with one or more neighbors to adequately protect the investment.

To create a solar skyspace easement, you must draft a written limitation in a deed or other instrument establishing and preserving a right to unobstructed access to solar energy, and record it in the same manner as any other conveyance of an interest in real property.  The written instrument creating the easement must include a description of the location and times of day in which an obstruction to solar energy is limited, the terms under which the easement is granted or terminated, provisions for compensation of the benefited landowner in case of interference, provisions for compensation of the burdened landowner for maintenance of the easement, and descriptions of the real property burdened by and benefiting from the easement.

Solar skyspace easements last for a minimum of 10 years unless agreed otherwise and expressly stated in the easement, or unless a party challenges the easement and a court determines that the easement has been abandoned or conditions have changed such that the easement is no longer enforceable.

Solar skyspace easements significantly affect the property rights of the parties.  The easement runs with both the land burdened and the land benefited by it.  The land benefited by the easement is the property that has an established right to unobstructed sun.  The land burdened by the easement is the property that is restricted from obstructing sunlight through a specified area.  An easement that “runs with the land” stays with the property rather than with the parties who established the easement; the rights established endure even if one or both of the landowners change.

For example, if you agree to a solar skyspace easement with your neighbor to protect access to sunlight for a solar installation on your property, your property is the benefited property and your neighbor’s property is the burdened property.  If your neighbor sells the burdened property, then the new owner’s use of that property will still be burdened by the easement.  Likewise, if you sell your property, the new owner will benefit from the easement.

A landowner may not be eager to agree to a solar skyspace easement because it may prevent the landowner from building a house in a particular location, or from allowing trees to grow too tall or in a specified area, depending on the easement language.  These restrictions may, in turn, have an effect on the future marketability of the burdened property.  To establish a solar skyspace easement, the parties will have to negotiate and come to a mutually beneficial agreement.

To best protect your investment in solar, it may be necessary to negotiate a solar skyspace easement with one or more of your neighbors.  In some cases establishing the easement may be tricky because there are meaningful property rights involved.  It is important to keep these considerations in mind when approaching a neighbor to establish a solar skyspace easement.  If this is a concern, we recommend consulting an attorney to help navigate the process.  With a proper solar skyspace easement in place, your investment in solar will be better protected for the long term.

About the Author: Kelley Stonebraker

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