Maine Solar Rights & Easements Law

Maine deals with solar in two separate chapters of Title 33, and they do different jobs. Both are reproduced in full below.

• Chapter 28 — Solar Easements (§§ 1401 to 1402) is about agreements between neighbours to keep sunlight reaching a property.
• Chapter 28-A — Solar Rights (§§ 1421 to 1424) is the one that limits what a covenant, declaration or association rule may forbid.

Solar easements: a recorded property right

Maine gives no automatic right to sunlight across someone else's land. If you want that, you negotiate it. Section 1401 provides that an easement obtained to ensure access to direct sunlight must be created in writing, is an interest in real property that can be acquired and transferred, and must be recorded and indexed the same way as other conveyances. Solar easements are appurtenant and run with the land benefited and burdened — so they bind later owners — and remain subject to court-decreed abandonment and other limitations provided by law.

Section 1402 says what the instrument may contain — expressly “but the contents shall not be limited to” these: a definite and certain description of the space affected, and any terms or conditions under which the easement is granted or will terminate. It may include a map, and where the map and the written easement disagree, the written easement controls.

Solar rights: what a covenant or association rule cannot do

Chapter 28-A is the provision that matters to most owners, and it needs reading carefully because three of its limits are easy to miss.

What it covers. Section 1421 defines a “legal instrument” to include municipal ordinances, bylaws and regulations directly regulating solar devices on residential property; “[r]ules, bylaws or regulations of an association of property owners, including but not limited to a homeowners association, unit owners association or condominium owners association”; and deed restrictions, restrictive covenants, declarations, contracts or similar binding agreements. So it reaches association documents squarely.

A “solar energy device” means a solar collector or a solar clothes-drying device. A solar collector is equipment designed and used to turn solar energy into thermal, chemical or electrical energy for the water heating, space heating, space cooling or electricity needs of one residential dwelling. A solar clothes-drying device is “a clothes line, drying rack or other equipment used for solar drying of clothing.”

The three limits

1. It only reaches documents created after 30 September 2009. Section 1423(1) says the section “applies to a legal instrument adopted or created after September 30, 2009 that defines or limits the rights or privileges of owners or renters with respect to the use of residential property”. That is the single most important sentence in the chapter and it is easy to skip past. If your declaration, covenants or rules predate that date, the Solar Rights law does not reach them on its face — but read the verb: the statute says “adopted or created”, so an instrument re-adopted or amended after 30 September 2009 is a live question rather than a closed one. Many Maine subdivisions and condominiums are older, so check when the instrument you are up against was adopted — and note that a rule adopted after that date is itself a legal instrument, even if the declaration under which it was made is older.

2. Common elements are carved out. Section 1423(3) permits a legal instrument to prohibit the installation and use of solar energy devices on residential property “in common ownership with 3rd parties or common elements of a condominium.” So a condominium may ban collectors on the roof or anywhere else in the common elements. What section 1423(2) protects outside that carve-out is a solar energy device on residential property the person owns, and a solar clothes-drying device on residential property the person leases or rents — see the next limit.

3. Owners and renters get different rights. Under section 1423(2), a legal instrument may not prohibit a person from installing or using a solar energy device — collector or clothes line — on residential property owned by that person; but on property leased or rented by that person, only a solar clothes-drying device is protected. A tenant has no statutory right to a solar collector.

“Reasonable restrictions” — and which one carries the alternative test

Section 1423(4) lets a legal instrument include reasonable restrictions, and then defines the term. A reasonable restriction is any restriction that is necessary to protect:

• Public health and safety, including but not limited to ensuring safe access to and rapid evacuation of buildings;
• Buildings from damage;
• [h]istoric or aesthetic values, when an alternative of reasonably comparable cost and convenience is available; or
• Shorelands under the shoreland zoning provisions of Title 38, chapter 3, subchapter 1, article 2-B.

The clause about an alternative of reasonably comparable cost and convenience belongs to the third ground only. That matters, because “[h]istoric or aesthetic values” is the ground an association is most likely to reach for — and on that ground the restriction is reasonable only if there is somewhere else you could put the device at comparable cost and convenience. A restriction resting on safety, building damage or shoreland zoning carries no such condition.

Finally, section 1424 makes clear the chapter does not supersede any existing authority to adopt and enforce laws, rules or regulations on matters other than the installation and use of solar energy devices on residential property.