by John E. Taylor
Though subject to the whims of governments and utilities, solar energy projects are a burgeoning industry in Georgia. See, for example, the discussion of various projects at:
http://www.myajc.com/business/economy/farmers-harvest-rays-solar-grows/jw6YD7YPkO0rs3kWqiAwSM/ (accessed December 18, 2016).
Successful solar project requires first and foremost reliable access to the sun.
A developer of a solar project determines the uses of the land on which the project is located, but what about surrounding land? Tree growth or building construction may inhibit access to sunlight. The Georgia General Assembly noted the risk:
O.C.G.A. § 44-9-21
The imposition of restrictions upon the adjacent properties may help, but private use and building restrictions may be effective in Georgia for only up to twenty years. See http://www.taylorlegal.net/20-may-not-be-what-its-cracked-up-to-be/.
That period may not be sufficient for the planned use of the project. The Georgia General Assembly provided the option of a solar easement “to allow the owner of a solar energy device to negotiate for assurance of continued access to sunlight.” Id. A solar easement agreement must be in writing and is subject to the same requirements of conveyance and recording as applicable to other easements. O.C.G.A. § 44-9-22.
It must include a definite description of the affected airspace and any terms or conditions under which it is granted or will be terminated. A solar easement establishes an interest in real property insurable by title insurance and may be perpetual.
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