Legal qualification of solar panels

In recent years, solar panels have increasingly been the subject of legal proceedings. The question is then, for example, who owns solar panels that have been placed on a building, by someone other than the owner of the building itself. This article briefly outlines the legal framework regarding this question.

Solar panels: movable or immovable ?

The law provides (article 3:3 paragraph 1 of the Civil Code) that buildings and works that are permanently united with the ground are considered immovable property. In the well-known Portacabin judgment, the Supreme Court explained that this is the case if a building or work, according to its nature and design, is intended to remain permanently in situ. A house is founded on the ground and therefore qualifies as an immovable property. If a property is not permanently united to the ground, it is therefore a movable property. However, a movable object can become immovable if it is a component of another immovable object.

Component formation

Components of a thing are inseparable things that merge into the thing of which they are a part. Two criteria follow from the law (Art. 3:4 BW) to determine whether a thing has become a constituent part of another thing.

The first criterion is that the case is a constituent part of the main case according to common sense. This is the case, for example, if two things are constructively matched. Or if the thing without a constituent part must be considered incomplete or unfinished.

If this criterion does not clarify whether there is constituent formation, the second criterion is considered. This criterion looks at whether a thing is so connected to the other thing that it is not possible to separate the two things without damage. If there is constituent formation, the owner of the main thing is also the owner of the constituent parts. After all, the thing is then seen as one whole.

Are solar panels considered a component of the building?

The next question is whether solar panels qualify as a component of the building to which they are attached.

To answer this question, it is first important to look at how the solar panels are attached to the roof. For example, there are solar panels that are completely integrated into the roof and solar panels that are mounted on the roof. The literature generally assumes that solar panels integrated into the roof are components of the building. After all, the (roof of the) building is then incomplete without the solar panels and the solar panels cannot be removed without damage to both items.

There is more discussion about non-integrated solar panels. A building is generally not structurally specifically designed to accommodate non-integrated solar panels. In addition, the building cannot be considered incomplete without the solar panels.

Even under the second legal criterion, the outcome seems to be that non-integrated solar panels are not a component of the building. After all, solar panels mounted on a roof can often be removed without too much difficulty. However, the view that solar panels are still considered a constituent part of the building according to the concept of traffic seems to me to be still very defensible. After all, solar panels - like a heating system and piping - serve the building on which they are located. In the literature and case law, it is generally assumed that heating systems and piping should be regarded as an element of the building in which they are located.

Superficies

Until case law clarifies whether or not non-integrated solar panels can be considered a component, it is at least wise to keep the legal framework in mind. The moment solar panels are considered a component of the building on which they are placed, this has major consequences. For example, the owner of the building also becomes the owner of the solar panels.

This is also the case the moment someone other than the building owner has the solar panels installed. If someone other than the building owner wants to install solar panels on the roof of a building, it is therefore advisable to establish a building superficies right on the building. A building and planting right is a right in rem that can be established on an immovable property belonging to another person. With this right of superficies, the person who has the solar panels installed remains the owner of the solar panels. The owner of the building must tolerate the presence of the solar panels after a building lease has been established.

Conclusion

Depending on the type of solar panel, until there is more clarity on it in case law, it is prudent to establish a right of superficies if someone other than the building owner wants to install solar panels on a roof and retain ownership.