Time for solar rights | Edward Mario Camilleri

Easements have featured prominently in Maltese legislation since their formal introduction by the Roman Empire following the Second Punic War. Retaining their importance in subsequent centuries, they were formally codified through the Code de Rohan and finally the original version of the Civil Code in the 19th Century. Easements were duly considered a fundamental part of Roman Law and a basis for Maltese legislation.

The notion of easements and servitudes has rarely been revisited, with sporadic amendments to the Maltese Civil Code since their formal introduction. However, it must be recognized that the situation in Malta today is diametrically opposed to the days when easements were introduced. Nonetheless, they have retained their importance and continue to regulate important bilateral rights between property owners. 

Following Malta’s independence, the Maltese islands have experienced several building booms which persist to this day. Easements and servitudes, particularly rights and corresponding obligations entered into in contractual deeds have not caught on with regard to new construction developments and skyscrapers. This has particularly affected the altius non tollendi easement, which restricts the development of buildings over a specific height.

Under Maltese law, the Civil Code states that all easements must be registered at the Public Registry. Maltese Courts have been particularly strict on the requirement to register easements at the Public Registry, as well as with regard to the exact wording used to establish such easement.

Regardless of the measures undertaken to formalise easements, the construction of high-rise buildings has brought new considerations to the matter. This is particularly noteworthy due to the government’s intention to focus on solar energy as the Maltese Islands’ main source of renewable energy in order to reach the 10% target in renewable energy by the year 2020, as established by the EU 2020 targets. 

Malta’s share of renewable energy produced through solar energy has increased significantly in recent years, the result of several financial incentives promulgated by the government and Malta Enterprise. Solar energy accounts for the largest share of renewable energy in Malta, exceeding 3%. This figure is estimated by the draft National Renewable Energy Action Plan (NREAP) to increase to 4.7% by 2020, amounting to 11.5% of the gross final consumption of electricity.

The installation of solar panels is also estimated to increase in the near future, however, the development of high-rise buildings provides additional challenges. Such construction may obscure rooftops occupied by photovoltaic cells, greatly reducing their production potential and increasing the timespan to recover capital expenditure to such an extent that installing solar panels would be financially unfeasible. This situation is already happening around Malta, with reports of solar panels obscured by adjacent developments making the rounds on social media and printed media alike.

The lack of solar rights legislation in Maltese law has been acknowledged in the NREAP Report, which states that it is a major hindrance to investment in photovoltaic energy in Malta. This lacuna is also reflected in EU law, which remains uncommitted regarding solar easements and other solar rights despite the recognition of such easements in US law since the 1970s. 

Given the provisions of the Civil Code with regard to easements, it is reasonable to assume that the introduction of solar easements would be effective only if these are voluntary, with the owner of the servient tenement entitled to withhold permission. However, it would be incorrect to assume that the creation of a solar easement is akin to the creation of an altius non tollendi easement since a solar easement does not overtly concern itself with the height of a proposed development but with its effect on the photovoltaic system.

In this regard it would be pertinent to analyse the situation in the US State of California, which has implemented some of the world’s most progressive solar rights legislation. This legislation attempted to balance the needs of private property owners and photovoltaic owners through the development of solar access rights. 

Californian legislation defined a solar easement as the right ‘to receive sunlight across real property of another for any solar energy system’. This provision ensured that solar easements are protected at law whilst the condition of having a solar energy system served to prevent the invocation of this clause to oppose any development which affected sunlight.

Additionally, Californian law contains provisions regulating the installation of photovoltaic cells and impediments to their installation. Unreasonable impediments are prohibited by law through specific benchmarks. 

It is time for Malta to legislate similar provisions to reassure private investors through solar easements. It is not sufficient to merely facilitate the installation of photovoltaic cells through financial schemes if this investment is not backed up by legislation designated to protect the right to solar energy for all. Additionally, the introduction of solar rights would not only reiterate Malta’s commitment as a country towards solar power, but also as part of a comprehensive long term strategy as established by the draft NREAP.

Dr Edward Mario Camilleri holds a Masters Degree in International Maritime Law (IMLI) and Energy & Natural Resources Law (QMUL). He is a lawyer at SAGA Juris Advocates

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