The matter of solar property rights is making the rounds across the country and, thanks to Missouri’s decision to develop solar generation, more and more people are discovering that the Show-Me State passed a “Solar Property Rights” bill back in 1979.
Having a law on the books from that far far back seems quite progressive–and in a way, it certainly is. Many states have only recently passed solar property rights legislation. Our Easterly neighbor of Illinois recently passed a solar property rights law. New Mexico, Arizona, California, and Louisiana have also affirmed that property owners have a sovereign right to solar energy access.
However, the summary statement of Missouri’s statue (official statement of law) that clearly says “Solar energy is a property right” is misleading in the extreme. The statute does not establish access to solar energy or sunlight as a fundamental or inherent right of property ownership in the way that U.S. citizenship guarantees a right to free speech.
This is unfortunate because that’s exactly what the summary statement says: solar energy is a property right. It’s not implied. The statement doesn’t merely “seem” to say it. the summary statement doesn’t limit or qualify the professed right in any way. Saying that “Solar energy is a property right” will surely gain enthusiastic applause at a solar energy fair or campaign stop in certain districts, but it’s actually quite misleading. This statute, in its current language, does absolutely nothing to position or affirm access to solar energy as a fundamental right.
More accurate wording would be “Solar energy can be a property right under certain circumstances.” A better summary would be “Access to solar energy is a privately negotiable agreement between neighbors that can be enforced through public means (such as the court system).”
What does this all mean? Well, a good summary of the statute is:
A current or prospective solar energy system owner or operator can obtain an agreement with a neighbor that the neighbor won’t do anything to block the sunlight falling on the solar collection equipment. This agreement can be filed with the local records department (usually the County Clerk) and may be enforced through the court system and other civil authorities such as the Sheriff’s Department. Any agreement duly filed by an owner of a property is binding upon later owners of that property. There is no other way to prevent a neighbor from blocking the sun that falls on a system.
Kind of disappointing, isn’t it? Well, this is a good reason to contact RenewMissouri and VoteSolar to let them know that you’re interested in solar property rights.
The above is an interpretation, and interpretations are no substitute for the actual law. So let’s have a look at the law.
The laws in Missouri are called “Revised Statutes”. RsMO stands for “Revised statues, Missouri”. The statute in question is located in Chapter 422, Section 012. Here it is:
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RsMO 422.012 Solar energy is a property right–eminent domain not permitted–easement requirements.
442.012. 1. The right to utilize solar energy is a property right but eminent domain may not be used to obtain such property right.
2. Any easements obtained for the purpose of construction, reconstruction, remodeling or acquisition of a solar energy device shall only be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements. Any instrument creating a solar easement shall include, but not be limited to: The vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the solar easement and any terms or conditions or both under which the solar easement is granted or will be terminated. Easements for solar light shall be considered a negative easement and cannot be acquired by prescription but must be negotiated expressly.
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The first step in understanding this statute is to know the definition of an easement.
Easement: a right of use over the land of another for a specific purpose. An easement bestows a non-possessory interest on the easement holder in the property of the landowner. Most easements are permanent, unless the contract or deed between the parties states otherwise. (Source)
So an easement could extend you the privilege or right to use your neighbor’s land, but doesn’t prevent a government (local, state or federal) from declaring certain uses illegal. It’s perfectly legal to negotiate an easement with your neighbor where your neighbor agrees to let you to grow marijuana on their land, but the laws prohibiting its cultivation would prevent you from exercising that easement.
The “solar property right” statute formally declares solar access as being protected under the laws governing easements.
Notably absent from the list of purposes is operation of a solar energy device. This could be because the statute…
1. is very poorly worded…
2. intentionally weak, or…
3. perhaps is intentionally ambiguous to allow some future court to recognize and uphold verbal and/or unfiled easements where an operational easement is concerned.
Item 3 is included because sometimes the compromises worked out among adversarial parties arguing over the content and wording of a proposed law leave some major questions and issues unsettled, essentially deferring resolution of those issues to a later date.
The second part of the last sentence (“cannot be acquired by…”) prevents a solar easement from being automatically granted simply because someone has established a long-standing and continuous practice of collecting sunlight that passes over a neighboring property. This is called a “prescriptive easement”.
Prescriptive Easement: Under Missouri law, an easement by prescription may be proven by demonstrating that the claimant’s use of the property has been continuous, uninterrupted, visible, and adverse and that such use has continued for a period of ten years or more. (Source)
A prescriptive easement is “written beforehand” by the fact of continuous, long-standing use and becomes an enforceable easement without needing to be in writing. Under the current statute, this type of automatic easement is not allowed for solar access. Easements for solar must be negotiated directly and in writing with the neighbor who could someday plant trees or erect a building that blocks the sunlight that normally falls upon the system. If an easement is negotiated and filed with the county clerk, then all future property owners are prohibited from planting those trees or building a structure that would cast shade upon the solar system.
So the solar “property right” statute has everything to do with your neighbor and virtually nothing to do with your government. The only right granted by this statute is the right to enter into (“obtain”) a publicly-enforceable private agreement with your neighbor that your neighbor won’t block the sun that falls on your solar system.
