Topics to consider when establishing rights in rem in favour of solar-installations
This article was published in Tijdschrift voor Zakenrecht (Property Law Journal) 2020 no. 2/3.
Find the article here in Dutch (behind a paywall).
In practice, an increase is visible in the number of projects where a solar installation is installed for sustainability purposes. With the increasing demand for solar installations, there is a growing demand for proper legal arrangements in this regard.
In this article David Wumkes and Redmar Warning discuss specific items to be considered when designing the legal structure of projects that involve a solar installation. Firstly, the current state of case law with regard of the legal interpretation of solar installations is discussed. Subsequently, attention is paid to the various property law structures that can be used while designing legal structures with regard to solar installations; for example, when a right of superficies (opstalrecht) can be used and when a right of sub-leasehold (ondererfpacht) should be used. Furthermore, the scenario is discussed in which a solar installation will be realized on a building that is involved in a division in apartment rights. Finally, the writers discuss points to be considered if the building involved is being used for certain types of use, such as healthcare premises and schools.