May 12, 2008 
 
[This material is for study and discussion purposes and has not been approved by the Legislative or Executive Committees or the Board of Directors]
 
Issue : 
Should the statutory right to protect a solar collector against shade from neighboring trees be recorded?
 
Action : 
Required
 
Options :
1.  Do Nothing
2.  Oppose Unless Amended SB 1399 (Simitian) to require recordation of the "solar rights notice" created by the bill.
3.  Support if Amended to require recordation of the "solar rights notice" created by the bill..
4.  Oppose Unless Amended to refer the issue to the California Law Revision Commission for a detailed analysis.
5.  Oppose SB 1399
     Support SB 1399
6.  Other
 
Status/Summary:
Existing law allows an owner of a solar collector to force a neighbor to trim or remove a plant that significantly shades a roof-top solar collector. This bill attempts to add fairness to the rule by creating an exception for plants that were planted prior to the installation of the collector, and by requiring the owner of the collector to give advance notice to neighbors of the intent to install a solar collector.  Once notice is given, owners will have to pass on the notice to subsequent purchasers so that they will be bound as well.
 
Discussion: 
Each year Sen. Simitian holds a contest for his constituents called "There ought to be a Law" and the winning suggestion is introduced as legislation for the following year.  SB 1399 is a winning proposal from last year.  It appears to have grown out of a dispute in Sunnyvale in which one neighbor forced another to remove a redwood at the tree owner's expense.
 
A little known existing law (Public Resources Code Sec. 25982)  has, since 1979, created a right for owners of roof-top solar collectors not to be significantly (more than 10%) shaded by their neighbor's landscaping.  The law can have particularly harsh results when applied to large trees that grow up over the years and begin to shade the neighbors. The existing law exempts a tree that was planted prior to the installation of a solar collector, or that replaces such a tree that has died.
 
SB 1399 attempts to add fairness by clarifying the rules for a "first in time, first in right" decision by making four changes:
 
First, the owner installing a solar collector must give 60 days advance written notice of his or her intent to install the collector. 
 
Second, trees planted during that 60-day period (or earlier) will be exempt from the requirement to avoid shading the neighboring collector.
 
Third, the growth of trees that did not originally shade the collector is also protected. Existing law would not protect them unless they shaded the collector at the time it was installed.
 
Finally, and perhaps most importantly to real estate practitioners, the owner subject to a neighbor's "solar notice" is required to give notice to subsequent purchasers who will be bound by the same notice.
 
The bill will not change the provisions of existing law that allow local jurisdictions to set their own rules for solar access, nor will it remove the exemption for replacement of trees which have died.
 
Notifying subsequent owners.  While it might be argued that a notice received from a neighbor that perfects that neighbor's rights against being shaded is a material fact that must be disclosed to prospective purchasers, practicality suggests that such a notice may be lost or forgotten over the years. Even worse, without some objective way to verify the notice (such as a recording) the seller may have an incentive to avoid full disclosure, and his or her agent will have no way to discover the omission.
 
Should the right to solar access be recorded against effected properties in the same way as an easement? 
 
The access to solar exposure is likely to become an increasingly important feature in homes as conservation, "distributed" generation (or decentralized generation) or even "Net Zero" homes become more popular. It also seems likely that similar principals could logically apply to access to wind for wind-power. A related issue has arisen in some scenic locales where local government has attempted to create a right to a protected "viewscape" or "viewshed" and preserve traditional views or appearance.
 
The law is complex, although there is some guiding precedent in the acquisition of easements by prescription, or in the acquisition of riparian water rights by primary use.
 
Should C.A.R. propose amendments that refer the issue to the California Law Revision Commission for a more comprehensive analysis and a recommended statute?
 
In light of the lack of cases, and lack of widespread understanding, and ambiguity in the existing law, should C.A.R. actively oppose the bill if a proposed amendment is rejected?