BILL REQ. #:  H-4129.1 

Prefiled 01/08/08. Read first time 01/14/08.   Referred to Committee on Judiciary.

     AN ACT Relating to solar easements; and amending RCW 64.04.140, 64.04.150, 64.04.160, and 64.04.170.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 64.04.140 and 1979 ex.s. c 170 s 1 are each amended to read as follows:
     The legislature declares that the potential economic and environmental benefits of solar energy use are considered to be in the public interest; therefore, local governments are authorized to encourage and protect access to direct sunlight for solar energy systems. The legislature further declares that solar easements appropriate to assuring continued access to direct sunlight for solar energy systems may be created and may be privately negotiated, but that property owners with solar energy systems erected and operating on their property on or after January 1, 2009, have an implied solar easement.

Sec. 2   RCW 64.04.150 and 1979 ex.s. c 170 s 12 are each amended to read as follows:
     (1) As used in this chapter:
     (a) "Solar energy system" means any device or combination of devices or elements which rely upon direct sunlight as an energy source, including but not limited to any substance or device which collects sunlight for use in:
     (i) The heating or cooling of a structure or building;
     (ii) The heating or pumping of water;
     (iii) Industrial, commercial, or agricultural processes; or
     (iv) The generation of electricity.
     A solar energy system may be used for purposes in addition to the collection of solar energy. These uses include, but are not limited to, serving as a structural member or part of a roof of a building or structure and serving as a window or wall; and
     (b) "Solar easement" means a right, expressed as an easement, restriction, covenant, or condition contained in any deed, contract, or other written instrument executed by or on behalf of any landowner for the purpose of assuring adequate access to direct sunlight for solar energy systems. Solar easements for solar energy systems erected and operating on or after January 1, 2009, are implied and need not be written instruments.
     (2) Except as provided otherwise in this chapter, a solar easement is an interest in real property, and shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements. Solar easements for solar energy systems erected and operating on or after January 1, 2009, are implied and are not subject to conveyance and instrument recording requirements applying to other easements.
     (3) A solar easement shall be appurtenant and run with the land or lands benefited and burdened, unless otherwise provided in the easement.
     (4) Any instrument creating a solar easement shall include but not be limited to:
     (a) A description of the real property subject to the solar easement and a description of the real property benefiting from the solar easement; and
     (b) A description of the extent of the solar easement which is sufficiently certain to allow the owner of the real property subject to the easement to ascertain the extent of the easement. Such description may be made by describing the vertical and horizontal angles, expressed in degrees, at which the solar easement extends over the real property subject to the easement and the points from which those angles are to be measured, or the height over the property above which the solar easement extends, or a prohibited shadow pattern, or any other reasonably certain description.
     (5) Any instrument creating a solar easement may include:
     (a) The terms or conditions or both under which the solar easement is granted or will be terminated; and
     (b) Any provisions for compensation to the owner of property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement, or compensation to the owner of the property subject to the solar easement for maintaining the solar easement.

Sec. 3   RCW 64.04.160 and 1979 ex.s. c 170 s 14 are each amended to read as follows:
     (1) Except as provided otherwise in this chapter, a solar easement created under this chapter may only be created by written agreement. ((Nothing in this chapter shall be deemed to create or authorize the creation of an implied easement or a prescriptive easement.))
     (2) Solar easements for solar energy systems erected and operating on or after January 1, 2009, are implied and need not be written instruments.

Sec. 4   RCW 64.04.170 and 1979 ex.s. c 170 s 13 are each amended to read as follows:
     (1) In any action for interference with a solar easement, if the instrument creating the easement does not specify any appropriate and applicable remedies, the court may choose one or more remedies including but not limited to the following:
     (((1))) (a) Actual damages as measured by increased charges for supplemental energy, the capital cost of the solar energy system, and/or the cost of additional equipment necessary to supply sufficient energy:
     (((a))) (i) From the time the interference began until the actual or expected cessation of the interference; or
     (((b))) (ii) If the interference is not expected to cease, in a lump sum which represents the present value of the damages from the time the interference began until the normally expected end of the useful life of the equipment which was interfered with;
     (((2))) (b) Reasonable and necessary attorney's fees as fixed by the court; and
     (((3))) (c) An injunction against the interference.
     (2)(a) An action for interference with an implied solar easement for a solar energy system erected and operating on or after January 1, 2009, may be commenced only if the owner of the property upon which the solar energy system is located has documented the existence and operation of the system through a recorded instrument filed with the appropriate county auditor or recording officer.
     (b) If the action is for interference with an implied solar easement, the court may grant the interferee up to one hundred eighty days to remedy the interference.