Something shaded your solar panels: the right to solar and wind energy

The Code groups it among the compulsory easements, alongside the right of way, network access and the aqueduct easement: the compulsory easements of way for a plot without sufficient communication with a public road, of access to a general network, of solar energy, of wind energy and of aqueduct are governed by that chapter. Unlike a voluntary easement, created by agreement, a compulsory one is an easement whose creation can be demanded in the cases the law contemplates. And unlike the right of way, here the Code does not describe a right you must go and ask for, but one already held over the light and wind that ordinarily reach the plot, plus a duty of abstention binding every neighbour.

The right belongs to the holder of ownership or of other possessory real rights over a plot — you need not be the registered owner if you hold a possessory real right. The correlative duty, by contrast, binds every holder: the abstention from casting shade or obstructing wind over nearby plots by planting trees or plants is not limited to immediate abutters but to nearby plots. And the remedy for new works requires a specific condition: that the affected installation pre-dates the works taking its capacity.

• Holding ownership or other possessory real rights over the plot receiving the sun or wind.Verified against the official source
• To claim over new works: that your energy installation pre-dates those works, and that the works reduced its capacity.Verified against the official source
• To claim over shade: that it comes from planting trees or plants, which is the conduct the Code expressly prohibits.Verified against the official source

• Whatever fixes your installation’s date and its capacity before and after: invoices, the installation contract, permits, and the system’s production data. The Code’s remedy depends on the installation pre-dating the works and on how much energy was lost.

1. 1

   Step 1: Work out which of the two problems you have

   The article covers two different situations with different rules. One is shade or wind obstruction caused by planting: there the Code imposes a direct duty of abstention — every holder shall abstain from casting shade or obstructing the wind over nearby plots by planting trees or plants. The other is new works reducing the capacity of an installation that already existed: there is no prohibition on building, but a compensatory remedy. Confusing the two leads to asking for the wrong thing.

2. 2

   Step 2: If it is new works, know the choice is not yours

   This is the detail most people get backwards. The Code says that if new works reduce the capacity of a pre-existing installation on a nearby plot for harnessing this kind of energy, the owner of the plot responsible for the reduction is obliged, at their own option, either to supply the affected plot’s owner free of charge with the energy lost because of the works, or to allow the affected owner to relocate the pre-existing installation onto the plot causing the reduction. The phrase "at their own option" refers to whoever caused the harm: they choose between supplying you the energy or letting you move the panels onto their land. And if relocation is chosen, the costs are paid half by each holder — not wholly by the party who caused the problem.

3. 3

   Step 3: Do not try to block a neighbour’s construction with this article

   The Code says it bluntly: the right to make use of solar or wind energy does not limit the development of nearby plots. That is, your installation does not freeze anybody’s lot. What the article gives you against works is the energy-or-relocation remedy, not a veto. If what you want is to stop a construction, that is a different conversation and a different régime: permits, land use and OGPe, with their own guides.

4. 4

   Step 4: If you are asked to waive the right, you cannot even if you wanted to

   The Code closes that door: the right recognised here may be limited only for reasons of public safety, and any agreement limiting it is null and treated as unwritten. So a clause in a sale contract, in a development’s rules, or in an agreement with a developer making you waive the sun or wind is worth nothing — and it is worth nothing even though you signed it. The only limitation the Code admits is public safety.

5. 5

   Step 5: Document before claiming

   The remedy depends on two facts you must be able to prove: that your installation pre-dated the works, and how much capacity it lost because of them. Keep the installation date and contract, the permits, and above all the system’s production data before and after the works. Without that comparison, "how much energy you lose" — which is exactly what the neighbour would have to supply you free — is left open to argument.

First, with the neighbour: the Code gives them the choice between supplying the energy or allowing relocation, so the claim starts by putting that choice to them. Failing agreement, the civil claim is filed in the Court of First Instance.

• Believing the right to sunlight lets you stop a neighbour building: the Code says it does not limit nearby plots’ development.
• Assuming you choose the remedy: the option between supplying the energy and allowing relocation belongs to the owner who caused the reduction.
• Expecting the responsible party to pay the whole relocation: costs are split half and half between both holders.
• Claiming over works that pre-date your installation: the remedy protects a pre-existing installation.
• Signing — or honouring — a clause limiting this right: any agreement limiting it is null and treated as unwritten.
• Not keeping the production data from before the works, which is the proof of how much energy was lost.
• Confusing this right with OGPe permits and equipment certification, which are separate procedures.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov