Understanding Solar and Wind Energy Easements in Real Estate Law

Solar and Wind Energy Easements: A Growing Area of Real Estate Law

As renewable energy installations expand across the United States, solar and wind energy easements have become an increasingly important area of real estate law. These easements protect access to sunlight or wind for energy production by restricting certain activities on neighboring properties. For CP exam candidates and practicing paralegals, understanding these specialized easements demonstrates knowledge of both traditional property law concepts and their modern applications.

What Is a Solar Easement?

A solar easement is a right that limits the use of neighboring property in order to protect access to sunlight for a solar energy system. Without a solar easement, a neighbor could build a structure, plant trees, or make other improvements that shade a solar installation, drastically reducing its energy output and financial value.

Solar easements typically include:

• Description of the Solar Skyspace: The specific angles and dimensions of the airspace that must remain unobstructed to allow sunlight to reach the solar energy system.
• Restrictions on the Burdened Property: Limitations on building height, tree planting, and other activities that could interfere with the solar access.
• Duration: Whether the easement is perpetual or for a specified term.
• Compensation: Any consideration paid to the owner of the burdened property in exchange for granting the easement.
• Maintenance and Repair Provisions: Responsibilities for maintaining the solar energy system and the easement area.

What Is a Wind Energy Easement?

A wind energy easement protects access to wind flow for wind turbines or other wind energy systems. Like solar easements, wind easements restrict activities on neighboring properties that could interfere with energy production. However, wind easements present unique challenges because wind flow patterns are more complex and variable than solar access.

Wind energy easements commonly address:

• Setback requirements for structures on the burdened property
• Height restrictions to prevent obstruction of wind flow
• Noise and shadow flicker provisions
• Access rights for construction and maintenance of wind turbines
• Decommissioning obligations when the wind energy system reaches end of life

How Are Energy Easements Created?

Energy easements are created through the same legal mechanisms as traditional easements:

• Express Grant: The most common method. The parties negotiate and execute a written easement agreement that is recorded with the county recorder. This creates a property interest that runs with the land and binds future owners of the burdened property.
• Statutory Authority: Many states have enacted statutes specifically authorizing solar and wind easements. These statutes may define minimum requirements for the easement agreement, provide for recording, and establish enforcement mechanisms.
• Restrictive Covenants: Homeowners associations and planned communities may include renewable energy protections in their covenants, conditions, and restrictions (CC&Rs).
• Zoning and Land Use Regulations: Some municipalities have adopted solar access ordinances that provide protections similar to easements through zoning regulations.

It is worth noting that prescriptive solar easements (acquired through open and continuous use over a statutory period) are generally not recognized in most jurisdictions. Unlike traditional prescriptive easements, the passage of sunlight over another's property is typically not considered an adverse use.

What Legal Protections Exist for Solar Access?

Legal protections for solar access vary significantly by state:

• Solar Rights Acts: Several states have enacted legislation affirming the right to install solar energy systems and prohibiting unreasonable restrictions by homeowners associations, municipalities, and other entities.
• Solar Access Permits: Some jurisdictions allow property owners to apply for solar access permits that provide legal protection for their solar installations.
• Nuisance Claims: In some limited circumstances, intentional obstruction of a solar installation may give rise to a private nuisance claim, though this approach is uncertain and jurisdiction-dependent.

Challenges in Drafting Energy Easements

Drafting effective energy easements requires attention to several unique challenges:

• Defining the Protected Space: Unlike traditional easements that involve specific paths or areas on the ground, solar easements must describe three-dimensional airspace. This often requires engineering or technical analysis to define the solar skyspace accurately.
• Technology Changes: Solar and wind technology evolves rapidly. Easement drafting must account for potential upgrades, replacements, or modifications to the energy system over the easement's term.
• Valuation: Determining fair compensation for an energy easement requires specialized appraisal techniques that account for the impact on the burdened property's development potential.
• Termination and Decommissioning: The easement should address what happens when the energy system is removed or decommissioned, including restoration obligations.

Energy Easements on the CP Exam

While energy easements are a relatively specialized topic, they may appear on the CP exam as part of broader questions about easement law. Understand how energy easements relate to traditional easement concepts (appurtenant vs. in gross, creation methods, termination) and how they reflect the evolving nature of property law. Review easement concepts using our flashcard system.

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