Protecting the Soul of Solar Power

by Stephan P. Hyun, Esq.

As spring season is underway, you may work on some spring cleaning, perhaps tend to your plants and flowers that have started blossoming. With winter gone, the days are becoming longer and weather is getting warmer. You may be thinking of ways to take advantage of all this sunlight…this solar energy. After all, solar energy has become much more prevalent in warmer climate locales as a primary or supplementary source of power.

 

With this growing emergence of solar energy and reliance on that form of power, it is important that homeowners know their rights so that they can harness and capture the full potential of what their solar energy system may offer. What can you do if your solar panels are blocked by shade from a neighbor’s towering tree? What are your solar rights?

Most people are unaware that California enacted the Solar Shade Control Act (“the Act”), which is a way to provide an avenue of protection for homeowners. Part of the Act states that after the solar energy system (e.g. solar panels) is installed, neighbors cannot allow their trees or shrubs to cover in shade more than 10% of the solar panels at any time within the hours of 10 a.m. and 2 p.m. If the neighbors fail to remove or alter the shade causing vegetation after receiving written notice from the owner of the solar panels, those neighbors’ conduct constitutes a private nuisance and is actionable under California law.

It is important to note that just with many laws, there are exemptions to the Act. Notable exemptions include vegetation that is planted, owned, and maintained by the city or county, since a city or county may pass an ordinance exempting them from purview of the Act, as well as vegetation planted prior to the installation of the solar panels.

If you live at a residence that must abide by the rules and regulations of a homeowners association, you have additional rights set forth under California Civil Code Section 714, which states that homeowners associations cannot prohibit or restrict the installation or use of solar panels on private property.

The Act talks about vegetation specifically but what about solar panels blocked by an adjacent building’s shade? Unfortunately, the Act does not cover or specify a landowner’s rights in regards to obstructive buildings. However, there is another route for the landowner. In order to protect the landowner’s rights, pursuant to California Civil Code Section 801.5, the landowner can obtain what is called a “solar easement” which allows the landowner to receive sunlight across real property of another for use for solar panels or similar solar energy systems. As a result, this “solar easement” restricts what the adjoining building owner could build if it would block the sunlight that your solar panels receive. This easement should describe the measurements/dimensions of the easement, the hours of the day during which direct sunlight must not be obstructed, what specific objects are restricted in blocking the sunlight, any conditions that would allow revisions or termination of the easement, and the easement should be recorded in the county where the properties are located.

 

Hopefully with this primer on solar rights, you can feel more comfortable in taking the plunge on solar energy and feel confident protecting your investment in the sun.

Stephan P. Hyun graduated cum laude from Loyola Marymount University in 2008 with a Bachelor of Arts degree in Psychology, earning Dean’s List honors throughout his tenure. Before graduating from New York Law School with honors in 2011 and earning his Juris Doctorate, he co-founded his law school’s chapter of the National Association of Elder Law Attorneys. As Vice-President of that chapter, he helped lead awareness of legal issues related to Health Care Proxies and Advance Health Care Directives.

While studying law, he also served as an advocate for the Unemployment Action Center, counseling and representing claimants at administrative hearings.

Mr. Hyun has represented clients in a variety of business litigation and general liability matters, with a focus on providing legal counsel with regard to business transactions, as well as business formation/development. He has been admitted to practice before all California State Courts and the United States District Court for the Central District of California.

Congratulations

Congratulations to Partner Jonathan A. Ross for a successful Dismissal with Prejudice for our client, a tenant in a building. Our client was conducting business when plaintiff walked through a common area where construction was taking place. While in this common area, plaintiff slipped and fell and claimed substantial injuries as a result of the accident. Mr. Ross persuaded plaintiff that our client had no duty to maintain the common area of the building and our client was dismissed from the case.  Excellent work Jonathan!

Congratulations to Jonathan A. Ross and Darren P. Salute for writing a successful Motion for Summary Judgment/Adjudication on behalf of our client, a car dealership. A wrongful death suit was brought against our client by plaintiffs who were heirs of decedents. Decedents were driving southbound on Interstate 5 when a big rig described as a “vehicle transport” was traveling northbound on the same interstate. There were ten vehicles on the vehicle transport, including a Land Rover which detached from the trailer due to at least one frayed tie-down strap. The Land Rover crossed the median, collided with Decedents’ car and killed both of them.  

Our client was a car dealership who owned the Land Rover and the other cars being transported. Our client employed a licensed motor carrier/broker to transport the vehicles who, in turn, hired an independent driver to transport the vehicles.

Several arguments were examined by the court and our client won on all of them. In particular, the court agreed the independent driver of the vehicle transport was employed by the carrier/broker at the time of the accident and that the drivers decision to use frayed tie-down straps to secure the subject Land Rover could not have been foreseen by our client at the time it contracted with the carrier/broker.  Additionally, the court agreed that our client hired the broker/carrier, a competent, careful and fully licensed motor transport carrier, to transport its vehicles from California to Oregon. Our client relied on the carrier/broker’s business history, good will in the auto transport industry and good word of mouth from several reputable auto dealerships in the Portland, Oregon area. Another successful motion written by Darrren!

Business Tip of the Month

WHAT IS AN EARN-OUT?

By Harold Laufer, Esq.

Sometimes when a business is to be sold, the buyer and seller simply can not come to an agreement on price, even if they agree on all of the other terms. An earn-out is a way to bridge this gap by making the purchase price to be paid above an agreed amount dependent on the company’s performance after the sale.

Here’s an example: the buyer wants to pay $1,000,000 but the seller believes the company is worth $1,500,000. Using an earn-out, the parties would agree that the purchase price is $1,000,000 but that up to another $500,000 will be paid to the buyer if the company achieves certain targets. The targets, the time over which the earn-out can be earned and the payment terms are all negotiable. There is not just one way to structure an earn-out.

You need to be careful not to assume that an earn out is always the solution to a price disagreement. Here’s one example of how an earn-out can fail. Let’s say the target is based on the company hitting certain profit levels. Since the buyer is in control of the company after the sale, the buyer may decide to limit profit by investing in capital equipment or changing the company’s expense structure. If this happens the company will not have a possibility of achieving the profitability which would earn the seller in our example that extra $500,000.

You can see it’s important that anyone considering using an earn-out receive experienced advice. We understand earn-outs and can help you structure one that works for both the buyer and seller. 

Harold Laufer is a highly experienced corporate transactional lawyer, and has been Of Counsel with Bradley & Gmelich LLP for over two years. He spent much of his career practicing corporate law as an equity partner at a major Midwest law firm, where he headed the Mergers and Acquisitions Practice Group. He has represented companies of all sizes, from start-ups to Fortune 500 companies, along with their owners and managers, as a Trusted Advisor. Mr. Laufer has handled a wide variety of transactions for corporate clients, with experience in all aspects of a business’ life cycle, starting with deal structuring and entity formation, and continuing through Founder’s documentation, initial HR, IP, rights and licensing issues, financing, growth, corporate governance and eventually ending in liquidity events and exits.

Mr. Laufer has published and lectured on mergers and acquisitions, negotiation strategies and skills, and corporate governance. He has taught graduate level business courses on family offices, contract drafting and enforcement, and entrepreneurship. He is affiliated with UCLA’s Anderson’s MBA and entrepreneurial programs. 

Proud Supporter

Bradley & Gmelich LLP is a proud supporter of the Verdugo Mountains 10K Trail Run and Hike set to take place in Glendale on May 6, 2018. The Trail Run and Hike benefits the Glendale Parks and Open Space Foundation, which supports park projects, recreation programs, as well as trails and open space activities that enrich the entire community. To find out more about this program, visit www.glendaleparksfoundation.org

Congratulations to Litigation Secretary Lorraine Jones-Hicks for celebrating 10 years at Bradley & Gmelich LLP! Happy Anniversary, Lorraine!

B&G Basketball Team Update

The B&G basketball team, led by team captain German Dixon, is now on its second season and the players are having the time of their lives. With their positive attitude and knack for fun, they're on the road to success, whatever that might be. We'll keep you posted!