Photovoltaic systems - a consideration under property law
The use of renewable energies is promoted by the federal government and cantons through various measures and incentives. For example, energy legislation stipulates that grid operators must purchase and pay for the electricity they are offered from renewable energy sources. Consequently, anyone who can feed self-produced electricity into the grid is compensated financially. Under building law, the construction of photovoltaic systems is also exempt from the licensing requirement if certain conditions are met, and tax incentives have also been introduced.
What are photovoltaic systems?
Photovoltaic systems ("PVA") are solar systems that convert the sun's rays into electrical energy and thus make them usable. PV systems can either be integrated into a building (e.g. in roof coverings, façade cladding or balcony parapets), mounted on a building (e.g. as rooftop installations) or installed as ground-mounted systems on open ground.
With building-integrated systems, parts of the building envelope are replaced by solar modules, while with additive systems, solar modules are usually attached to a substructure on or to a building. In the case of flat roofs, it is sometimes possible to install them without attaching them to the roof itself. In contrast to building-integrated systems, such (additive) solar modules do not replace any parts of the building envelope.
In ground-mounted systems, solar modules are placed on a substructure on the ground. Ground-mounted systems are currently not very important in Switzerland - not least due to the shortage of available space - which is why they are not discussed in detail in this article.
If the PV system is connected to the electricity grid, allowing the electricity generated to be fed directly into the grid, this is referred to as a grid-connected system. With grid-connected systems, there is no need for intermediate storage of the solar power, as it can be used immediately. If, on the other hand, the PV systems are not connected to the grid and are used solely for self-consumption, they are referred to as stand-alone systems.
Property law issues
Swiss property law recognizes the principle of succession. According to this principle, whoever is the owner of a thing ("principal thing") is also the owner of all its components. Consequently, the component part does not have its own legal fate, but the owner of the main thing necessarily also becomes the owner of the component part.
A component is anything that (i) is part of a main object according to the customary understanding at the location and (ii) cannot be separated without destroying, damaging or altering it. For example, if someone uses third-party material or their own material on third-party land to build something on their land, it becomes part of the property. The status of existing property arises by operation of law and is of a mandatory nature, i.e. even contractually deviating agreements are not able to break through the accession principle.
The customary local view is taken into account as a criterion by using this as an aid if the other criteria do not allow a clear determination and the legal requirements therefore need to be defined in more detail. The criterion of destruction, damage or alteration of the main object presupposes that there is an external and internal connection between the component and the main object. The internal connection is affirmed if the component forms a unit with the main object in accordance with its intended purpose or if there is a connection of purpose between them. In addition, the connection must be permanent, whereby the recognizable intention of the parties is decisive. Moreover, destruction, damage or alteration is only decisive if it affects the main object.
In contrast to the components, there are physical objects that are not firmly attached to the ground and whose spatial position can be changed without loss of substance. As so-called movables, huts, shacks or booths, for example, retain their ownership if they are erected on third-party land without the intention of a permanent connection. The decisive factors are the intention of the parties involved, the specific type of building and the intensity of the connection with the land.
Solar installations on third-party buildings
When a PVA is purchased, relatively high acquisition costs and recurring operating costs are incurred. It takes several years before the system is amortized. As a result, more and more financing alternatives are being offered. If you cannot or do not want to spend the capital for the purchase and/or operation, PVA's can alternatively be rented, leased or used as part of a contracting arrangement. With these solutions, it is always important to bear in mind who should own the plant. Due to the accession principle, the specific question arises from a property law perspective as to whether solar systems can be regarded as chattels or whether they automatically become the property of the building owner, and what can be done to prevent the latter.
The correct contract design between the system provider and the system user depends crucially on the qualification of the PVA under property law and the desired ownership position in the individual case.
Property law qualification of the PVA
Before the solar systems are installed, they are all considered tangible property. They can therefore be qualified per se both as components and as movables. The decisive factor is the installation of the PVA in each individual case.
Building-integrated systems
With building-integrated systems, parts of the building envelope are replaced by solar modules. If they are removed, the functionality of the building is therefore no longer guaranteed. In addition, power lines and cables are usually routed from the solar modules to the inside of the building in order to supply the technical equipment and devices of the solar system with electricity. Both an external and internal connection between the solar system and the building must be affirmed.
In addition, it can normally be assumed that the connection is permanent, as the construction of a cost-intensive PVA usually aims for long-term amortization. The decisive factor as to whether the connection can be assumed to be permanent is the recognizable intention of the parties.
Building-integrated systems are therefore components of a building. This is also supported in the Canton of Zurich by the Introductory Act to the Swiss Civil Code of the Canton of Zurich ("EG ZGB"). This states in §135 Para. 1 EG ZGB that equipment structurally connected to the building, such as engines, elevators, electrical wiring, boilers, fans, etc., are considered components according to local usage.
Additive systems
Additive solar modules are usually firmly anchored to the roof by means of a substructure comprising mounting profiles and insertion rails. However, the requirement for an external connection can also be fulfilled if the connection is only due to gravity. In addition to the solar modules, connecting cables must also be installed from the solar modules to the inverter system or to the batteries. It may also be necessary to install a new system so that the electricity can then be integrated from these into the electrical system. A certain amount of impact on the building cannot normally be avoided, particularly during the last installation steps mentioned.
In order for the element of internal connection to be affirmed, the part in question must form an intended unit with the main object or there must be a purpose connection between them. This criterion is particularly decisive if the main item is not destroyed or damaged when it is separated from the part, but only altered. If the economic value of the main item is reduced by the separation, this is already sufficient to affirm a change and thus an intrinsic connection.
If a PV system is used to cover all or only part of the electricity requirements of the building on which the system is installed, the earmarking is probably to be affirmed. In particular, because the economic value of the building is reduced by the removal of the system. The same probably also applies if the PV system is only used to feed electricity into the grid. After all, the owner receives remuneration for the electricity fed in, which means that the economic value of the building increases with the PV system.
Whether the connection is also permanent depends on the parties' intentions. Permanence is probably to be denied if the parties contractually stipulate that the PVA can be erected and used for a certain period of time and will be removed again at the end of this period.
What if the user or owner of the PVA is not (only) the building owner?
If the PVA qualifies as a component and the landowner's ownership therefore also extends to the PVA on the basis of the principle of accession, there are legal options for securing the use or even ownership of the PVA by third parties.
Of particular interest in this regard are personal easements, such as building rights, or easements that are modeled on the right to a source. We will be happy to advise you in this regard.
Balthasar Wicki and Vivien Keiser will be happy to answer any questions you may have on this topic.