[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
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
require recordation of the "solar rights notice" created by the
bill.. 4. Oppose
Unless Amendedto refer the issue to the
California Law Revision Commission for a detailed analysis. 5. Oppose SB
SupportSB 1399 6.
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
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
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.
attempts to add fairness by clarifying the rules for a "first in time,
first in right" decision by making four changes:
the owner installing a solar collector must give 60 days advance written
notice of his or her intent to install the collector.
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
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.
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.
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.
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.
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.
C.A.R. propose amendments that refer the issue to the California Law
Revision Commission for a more comprehensive analysis and a recommended
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?