Form-of-the-Week: Solar shade control notice and notice of intent to alter shared boundary fence — Forms 322 and 323

Easements establish rights of use in another’s parcel

An easement is the right of one property owner to use the property of another.

The most common easement is used for ingress and egress. An easement for ingress and egress creates a right of way allowing one property owner to traverse a portion of another’s land to access their property.

Occasionally an owner of property burdened by an easement interferes with the use of the easement by a neighbor whose property benefits from the easement. The neighbor entitled to use of the easement may reinstate the permitted use either by removal, relocation, or modification of the interference.

Further, the neighbor owning the right-of-use easement is entitled to compensation for their money losses caused by the interference of the neighbor’s use of the easement.

An owner of a parcel of real estate has no automatic right, and may not acquire a prescriptive right to air, light or an unaltered view through a neighboring property’s airspace. [See RPI e-book Legal Aspects of Real Estate, Chapter 13]

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Solar easements and shady neighbors

A relatively recent type of easement is the solar easement. A solar easement is an easement restricting a property owner’s ability to maintain improvements which interfere with a neighboring property owner’s solar energy system, such as solar panels.

Solar easements were established with the intent of encouraging the productive use of solar energy systems by any property owner as a matter of public policy.

A solar easement is created as a grant in a written instrument which states:

the measured angles by which sunlight has to pass;
the hours of the day during which the easement is effective;
the limitations on any object which impairs the passage of sunlight through the easement; and
the terms for terminating or revising the easement. [Calif. Civil Code §801.5]

Solar easements are similar to easements of light, air or view since they restrict an adjacent property owner’s ability to maintain any improvements in the air space above the surface of the property which interferes with the neighbor’s solar energy system.

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The Solar Shade Control Act

Consider a recorded restrictive covenant which limits the height of improvements on parcels within a subdivision. A tree on one owner’s parcel has grown and now exceeds the height limitation. A neighbor installs a solar collector and seeks to enforce the restrictive covenant by demanding the owner to maintain the tree below the designated height.

Here, when the neighbor installs a solar collector on their property, they receive an incidental benefit from the height restriction covenant which they may enforce. The covenant limits the height of improvements on other parcels which hinder the passage of sunlight to a solar collector and another property subject to the covenant. [Ezer v. Fuchsloch (1979) 99 CA3d 849]

Also, any property owner who installs an active solar collector is, by their conduct, granted a solar easement across adjacent properties under the Solar Shade Control Act (SSCA) without the need for a writing. The adjacent property owner may not later plant trees or shrubs and allow growth which between 10 a.m. and 2 p.m. (standard time) shade an active solar collector previously installed by a neighboring property owner. [Calif. Public Resources Code §25982]

For easements created on an owner’s property by a neighbor’s installation under the SSCA, trees or shrubs growing on the owner’s property prior to the neighbor’s installation of a solar collector may remain and are not subject to height restrictions. They were in place before the neighbor’s solar collector was installed. Thus, no height limit on preexisting trees or shrubs exists, unless established by a recorded height restriction on improvements — trees being improvements. [Pub Res C §25980 et seq.]

Additionally, when a tree or shrub has been growing before a neighbor installs an active solar collector, the owner of the property containing the tree or shrub may replace it when it dies after the solar collector is installed. [Pub Res C §25984]

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The solar shade control notice

When installing a solar collector on their property, an owner uses the Solar Shade Control Notice published by Realty Publications, Inc. (RPI) to limit future shadows from a neighbor’s pre-existing trees and bushes. Using the form, the property owner notifies potentially affected neighboring property owners within 60 days before installation that their trees or shrubs may not grow to cast a shadow greater than 10 percent of a solar collector absorption area. [See RPI Form 322]

The Solar Shade Control Notice contains:

the recipient’s contact information;
the owner’s contact information;
the address of the building where the solar panel will be installed;
the specific location on the property where a solar collector will be installed;
the solar collector’s installation date; and
the signature of the owner. [See RPI Form 322]

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Common boundary improvements mark the property line

The rights of adjacent property owners when setting up, maintaining or removing common boundary improvements depend on the type of improvement which exists. [See RPI e-book Legal Aspects of Real Estate, Chapter 9]

A common boundary improvement may be a:

party wall;
boundary fence;
tree line;
driveway; or
ditch.

Common boundary improvements, other than trees, located on a property line between adjacent properties are called party walls.

A party wall may be in the form of a wall, fence or building wall co-owned by the adjacent property owners.

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The use and ownership of a party wall is best set forth in a written agreement between adjacent property owners. The agreement defines each owner’s responsibility for sharing the cost of maintaining the party wall. However, these written agreements rarely exist.

An adjoining property owner may not remove or destroy a party wall without the consent of the other owner since each has an interest in the party wall.

An owner may alter a party wall, such as by installing cosmetic ornamentation on their side. However, they may not injure the wall or interfere with the adjoining property owner’s use of the party wall. [McCarthy v. Mutual Relief Ass’n of Petaluma (1889) 81 C 584]

For security and privacy purposes, many properties are fenced in by a boundary fence. A boundary fence may be a party wall co-owned by the adjacent property owners.

When an owner leaves their land unfenced and later decides to enclose it by using the existing fence as part of the enclosure, they need to compensate the neighbor who built the fence for the pro rata value of the neighbor’s fence used by the owner. [CC §841(b)(2)]

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Maintaining the “good neighbor fence”

Owners of adjoining properties are presumed to benefit equally from boundary fences. Under this presumption, all adjoining owners are equally responsible for constructing, maintaining and replacing boundary fences. [CC §841(b)(1)]

The responsibility for constructing, maintaining or replacing boundary fences may be altered or removed only by:

a written agreement between all affected owners; or
an adjoining owner’s judicial petition to remove or alter their responsibility.

On an owner’s petition to a court, factors considered when determining an owner’s responsibility for a boundary fence include:

whether the boundary fence presents a financial burden disproportionate to the owner’s benefit;
the cost of the construction, maintenance or replacement in relation to the value added to the owner’s property;
whether financial responsibility for the boundary fence imposes unjustifiable financial hardship;
the reasonableness of the construction, maintenance or replacement; and
any other unequal impact the construction, maintenance or replacement of the boundary fence may have on the owner. [CC §841(b)(3)]

When neighbors are responsible for a boundary fence, the owner who plans to construct, replace or maintain the fence is to provide a 30-day written notice to the affected adjoining property owners. [See RPI Form 323]

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The notice of intent to alter shared boundary fence

A property owner uses the Notice of Intent to Alter Shared Boundary Fence published by RPI when more than one owner is responsible for a boundary fence. The form allows the owner to provide affected neighboring owners a 30-day written notice of the owner’s intent to construct, replace or maintain the fence. [See RPI Form 323]

The Notice of Intent to Alter Shared Boundary Fence includes:

a notification of the presumption of equal responsibility for the boundary fence [See RPI Form 323 §1];
the location of the shared boundary fence [See RPI Form 323 §2];
the problem to be addressed [See RPI Form 323 §3];
the proposed solution [See RPI Form 323 §4];
estimated costs [See RPI Form 323 §5];
the proposed division of costs [See RPI Form 323 §6];
the proposed timeline to address the problem [See RPI Form 323 §7]; and
the signature of the owners. [See RPI Form 323]