Dear Counselor: Keeping the sun shining

Question: I own a house in Davis, and I installed a number of solar panels a few years ago. When I put the panels in, my neighbor assured me that he would cooperate in keeping a small patch of trees from ever interfering with the solar panels. Since then, the new neighbors have moved in, and the trees are now starting to approach blocking my panels. I have spoken with my neighbor about the issue. He mentioned that he likes the trees because they provide some early-morning shade to his yard. He said that he doesn’t want to trim them if “he doesn’t have to.” Can I go to court and force him to cut the trees? Does California law offer any protection for solar owners?

Answer: California has encouraged the use of solar power since 1978, and in 2008, our legislature enacted an amended version of the Solar Shade Control Act, which provides protection for the owners of solar collectors. If a neighboring property owner’s trees block more than ten percent of the panels’ production between 10 a.m. and 2 p.m., then the solar owner can declare a neighbor’s trees a private nuisance. As a private nuisance, the solar owner can sue in court seeking an order to abate the nuisance, i.e. to trim the trees.

But under state law, this protection does not apply when the trees were planted prior to the installation of the panels. Since your neighbor’s trees were already planted at the time you installed the panels, the protections under state law would not extend to your situation.

The city of Davis, however, repealed the state law act (an act authorized under the state law itself) and adopted its own “Davis Solar Shade Control Act.” Unlike the state act, the municipal code does not provide for an exception for trees planted before the panels. The municipal code enables you to declare your neighbor’s trees a private nuisance and obtain a court order to cut them back. So the answer to your neighbor’s question is that, indeed, he has to trim the trees.

There are limits, however, to the City’s more protective laws for solar owners. A person cannot just place a solar panel under a tree and expect the tree to come down. If the shade of the tree covers your roof, you will have to find a different spot for the solar.

Even though the law may be on your side, you would be well advised to avoid legal action as the costs of litigation will likely eclipse your solar savings. Calculate the potential loss to your solar production and ensure that your budget for dealing with the problem doesn’t exceed the amount saving from full solar production. Besides, suing your neighbor can make Neighbors Night Out an uncomfortable experience.

Rather than drag your neighbor into court, you may be able to use the presence of an existing violation to persuade him to grant you a solar easement. California property law does provide an easement for solar. In general, an easement is the affirmative right to use of the land of another, such as the right to travel onto your neighbor’s property to use a common driveway. A solar easement is known as a “negative easement.” A negative easement means that the party granting the easement promises to refrain from doing something. In the case of a solar easement, your neighbor promises that he or she will not interfere with the sun shining on your panels.

This easement would “run with the land” meaning that it would pass from the present owner to any subsequent owners of either as well. Furthermore, it would give you a private enforcement right instead of having to rely on a public law that may be subject to change.

Fortunately, your city gives you the right to get the trees trimmed and to protect your solar production. So let your neighbor know that you know the law, and let him know that this is your sunshine, your only sunshine, and to please … don’t take my sunshine away.


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.

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By |2018-12-04T14:00:04+00:00November 10th, 2018|Dear Counselor|Comments Off on Dear Counselor: Keeping the sun shining