Georgia Solar Easement Act of 1978

The Solar Easement Act of 1978 (O.C.G.A. §§ 44-9-20 through 44-9-23) is one of the shortest statutes on this site — four sections, printed in full below. It is worth reading all four, because what the Act does is narrower than its name suggests, and the gap between the two is where most confusion about solar panels in Georgia lives.

What the Act actually does

Section 44-9-21 states the General Assembly’s reasoning on the record. Solar energy use in Georgia “can help reduce the nation’s reliance upon imported fuels”, and solar energy development “should, therefore, be encouraged”; as solar devices become more common, so does the possibility of future shading of such devices by buildings or vegetation. The conclusion the legislature drew is the whole Act in one sentence: solar easements “may be established to allow the owner of a solar energy device to negotiate for assurance of continued access to sunlight.”

Read that carefully. The Act creates a mechanism to negotiate. It does not give anyone a right to sunlight, it does not stop a neighbour building or planting, and it takes nothing from the neighbouring owner unless that owner agrees. A Georgia solar easement is a bargained-for, voluntary property interest, in the same family as a right of way.

How one is created

Section 44-9-22 is a single sentence and it sets the form: any easement obtained for the purpose of ensuring the exposure of a solar energy device “shall be created in writing and shall be subject to the same requirements of conveyance and recording as other easements.”

So an oral understanding with a neighbour is not a solar easement, and neither is a handshake noted in an email. It is conveyed and recorded like any other interest in Georgia land — which means recording with the clerk of the superior court of the county where the land lies, the officer O.C.G.A. § 44-2-2(b)(1) charges with recording deeds, mortgages, liens provided for by law, maps and plats, and state tax executions. Recording is what makes it hold up against the next owner: under § 44-2-2(c), deeds, mortgages and liens of all kinds which are required by law to be recorded take effect, as against third parties who have acquired a transfer or lien binding the same property in good faith and without notice, only from the time they are filed for record. An unrecorded solar easement can be worth nothing the day your neighbour sells.

What has to be in it

Section 44-9-23 sets a floor, not a ceiling — any instrument creating a solar easement “shall include, but shall not be limited to” two things:

• A definite and certain description of the airspace affected by such easement (§ 44-9-23(1)). This is the hard part in practice. The protected resource is a volume of sky over someone else’s land, and “definite and certain” is a real standard on the face of the section — though the Act does not say what satisfies it.
• Any terms or conditions or both under which the solar easement is granted or will be terminated (§ 44-9-23(2)). Price, duration, what happens if the device is removed, what happens if it is replaced with a larger one, whether the burdened owner may trim rather than remove — all of it belongs here.

Because the list is expressly a minimum, a well-drafted Georgia solar easement usually says considerably more than the statute requires.

What the Act does not do

All four sections of Article 2 are hosted below. None of them mentions restrictive covenants, architectural review, an association, or a declaration. The Act neither authorises nor forbids a covenant against solar devices; it simply does not address the subject. Nothing in §§ 44-9-20 through 44-9-23 overrides a recorded covenant, and nothing in them requires an association to approve an installation.

So if you live in a Georgia community with recorded covenants, the Solar Easement Act is the wrong page for the question “can they stop me?” That question is answered by your recorded documents and by whichever statutory regime your community sits in. The rest of this guide sets out what those say — and the answer is not the same in all three.

Who decides whether your panels go up

In a condominium. Start with what you own. “Common elements” means all portions of the condominium other than the units (§ 44-3-71(4)), so unless the declaration draws your unit’s boundaries to include the roof — and § 44-3-77(a)(4) requires the declaration to describe those boundaries, including the upper and lower ones — the roof over your head is common element, not yours to build on. Then § 44-3-90(a), which opens with the same qualifier — except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein — a unit owner may make improvements or alterations within the unit that do not materially impair structural integrity or lessen support, and the same subsection then draws the line — “No unit owner shall do anything which would change the exterior appearance of his unit or of any other portion of the condominium except to such extent and subject to any conditions which the condominium instruments may specify.” Roof-mounted panels are an exterior change by any reading. Finally § 44-3-106(a)(3) gives the association power to grant or withhold approval of any action that would change the exterior appearance of a unit or any other portion of the condominium, or to provide for an architectural control committee to do it. The declaration must state any restrictions on general use of the condominium, or state that there are none (§ 44-3-77(a)(12)) — so read that clause first.

In a community under the Property Owners’ Association Act. Section 44-3-231(a)(3) carries the same power across in almost identical words: the association may grant or withhold approval of any action by a lot owner or occupant “if such action would change the exterior appearance of any lot, or any structure thereon, or of any other portion of the development” — or provide for an architectural control committee to do it. Both powers open with the same qualifier: the association has them except to the extent prohibited by the instrument, and “subject to any restrictions and limitations specified therein” (§§ 44-3-106(a), 44-3-231(a)). The recorded instrument is both the grant and the limit. Under § 44-3-223 every lot owner must comply with the instrument and with reasonable rules adopted under it, and the association may seek injunctive relief without first pursuing other remedies, after notice under the instrument or, if the instrument is silent, ten days’ written notice — and no notice at all where the violation presents a clear and imminent danger to life, person or property, or where an injunction would become moot before the notice period expired.

In a covenanted subdivision that has not elected into either Act. The enforcement machinery is § 44-5-60(d)(6), which applies to planned subdivisions containing no fewer than 15 individual plots: every owner and occupant must comply with all lawful provisions of the covenants, non-compliance grounds an action for sums due, damages, injunctive relief or any other remedy, the association may pursue injunctive relief without first using other remedies, and to the extent provided in the instrument it may impose fines and temporarily suspend voting rights and the use of common areas — but no suspension may deny an owner or occupant access to the property. The same paragraph adds that nothing in it renders covenants in a subdivision of fewer than 15 plots unenforceable.

The rule that decides a retrofitted solar ban

This is the part worth knowing before an annual meeting, and it is the point on which the three regimes genuinely diverge.

General Georgia covenant law contains an owner protection: “no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made” (§ 44-5-60(d)(4)). On its face that is exactly the rule an owner wants when a board proposes a new prohibition on solar devices.

But two sections switch it off. Section 44-3-116 provides that the limitations in § 44-5-60(b) and in paragraphs (1), (2) and (4) of § 44-5-60(d) do not apply to any covenants contained in any condominium instrument created pursuant to the Condominium Act. Section 44-3-234 says the same thing, in the same words, for any covenants contained in any instrument created pursuant to or submitted pursuant to the Property Owners’ Association Act.

The practical consequence:

• Condominium or POA Act community. The § 44-5-60(d)(4) written-consent protection is not available. An amendment adopted the way the instrument and the Act allow can impose a restriction that did not exist when you bought. In a POA Act community that is the agreement of lot owners holding two-thirds of the votes, or a larger majority if the instrument specifies (§ 44-3-226(a)(1)). The one greater-restriction veto that survives in Article 6 belongs to the declarant, not to you: while the declarant still owns at least one lot primarily for sale, no amendment imposing a greater restriction on the declarant’s use or development of its own lots may be made without the declarant’s written agreement (§ 44-3-226(a)(2)(A)). The same paragraph does carry one owner-facing protection: no amendment may prohibit or restrict a nonowner occupied lot from continuing to be leased for an initial term of six months or longer under the pre-amended instrument, until a conveyance for value (§ 44-3-226(a)(2)(B)).
• Subdivision that has not elected in. Section 44-5-60(d)(4) does apply. A newly adopted covenant amendment that imposes a greater restriction on the use of your land is not enforced against you unless you agreed to it in writing at the time it was made.

An amendment is also presumed valid in a POA Act community once a year has passed: in any suit where the validity of an amendment’s adoption is at issue, adoption is presumed valid if the suit is commenced more than one year after the amendment was recorded, and the burden shifts to the challenger (§ 44-3-226(f)). Waiting is expensive.

How long the covenants last at all

The same disapplication reaches the duration rules, which matter to an owner in an older subdivision. Under § 44-5-60(b), covenants restricting land to certain uses shall not run for more than 20 years in municipalities that have adopted zoning laws or in county areas for which zoning laws have been adopted — subject to a carve-out where a zoning ordinance, on its initial enactment, expressly acknowledged the continuing application of a pre-existing covenant. Under § 44-5-60(d)(1) covenants affecting planned subdivisions of no fewer than 15 plots automatically renew for further 20 year periods, with no limit on the number of renewals, unless terminated under § 44-5-60(d)(2) by a document executed by at least 51 percent of the owners of affected plots and recorded within the two years before an expiry. Separately, § 44-5-59 provides that a covenant agreed between a property owner and a third party runs with the land only where it is supported by consideration, appears in a duly recorded instrument in the chain of title, adequately describes the property, and does not run for more than 20 years — expressly excluding covenants recorded on property solely by the property’s owner, which run with the title.

All of § 44-5-60(b), (d)(1) and (d)(2) are among the limitations that §§ 44-3-116 and 44-3-234 disapply. Covenants in a condominium instrument, or in an instrument created under or submitted to the POA Act, are not on the 20 year clock at all.

Practical points for a Georgia owner

• Read the declaration before the statute. In every one of the three regimes the recorded instrument is where a solar restriction would live, and in two of them the statute expressly defers to it.
• Check which regime you are in, not what the community is called. The POA Act applies only where the declaration states an affirmative election to be governed by it (§ 44-3-222); the Condominium Act applies to property submitted by recorded condominium instruments (§ 44-3-71(7)). A “homeowners association” sign at the entrance settles nothing.
• A solar easement is for the shading problem, not the approval problem. Use it when a neighbour’s trees or planned construction threaten a device you are allowed to have.
• Describe the airspace properly and record it. Sections 44-9-23(1) and 44-2-2(c) are the two places a home-made easement fails.
• If the restriction is aimed at your disability-related equipment rather than at solar generally, the analysis moves to fair housing — see the Georgia Fair Housing Act.

How it fits with Georgia's other community laws

The Solar Easement Act sits in Georgia’s general easement chapter, not in its community-association chapter, and that placement is the point — it is property law for neighbours, and it is not association law:

• Condominiums are governed by the Georgia Condominium Act (§§ 44-3-70 through 44-3-117), which supplies the exterior-appearance rule in § 44-3-90(a) and the approval power in § 44-3-106(a)(3).
• Subdivisions that have affirmatively elected in are governed by the Georgia Property Owners’ Association Act (§§ 44-3-220 through 44-3-235), whose § 44-3-231(a)(3) carries the same approval power.
• Everyone else lives under their own recorded covenants and § 44-5-60 — including the written-consent protection in § 44-5-60(d)(4) that §§ 44-3-116 and 44-3-234 remove from the two statutory regimes.
• The association’s corporate shell comes from Title 14 — the Georgia Nonprofit Corporation Code (Chapter 3) or the Business Corporation Code (Chapter 2).
• Where a refusal turns on disability rather than on aesthetics, see the Georgia Fair Housing Act and the federal Fair Housing Act.

Return to the Georgia HOA laws hub for the full set, or read the plain-language Georgia HOA law guide.