Abstract

This article investigates whether rooftop solar panels form part of the building (immovable property) on which they are installed or whether they remain independent movable things even after their attachment to a roof. The enquiry is conducted against the backdrop of the uncertainties and debates that plague the doctrine of accession (accessio) in terms of which the owner of land is automatically the owner of all accessories thereof — that is, things permanently attached to the property. Based on the current state of the law, the courts are likely to regard rooftop solar panels as movable things where it was not the intention of the owner of the movable to forfeit ownership thereof (like a creditor who had reserved ownership in a credit agreement), even if the objective factors alone would have indicated that the solar panels had acceded to the building. This approach is criticised, and the argument is made that only the objective factors surrounding the physical installation, as informed by common sense and the prevailing standards of society, should be considered — not anyone’s subjective intention. After considering these factors, the article argues that most rooftop solar panels are part of the immovable property and are thus automatically owned by the landowner. If this outcome is unsatisfactory for commercial or policy reasons, it is recommended that the legislature should intervene with an express statutory exception for solar installations and/or a more general mechanism that would enable the registration of notarial bonds over objects attached to a building. Either or both solutions will create more certainty than the current approach of considering the owner’s intention on a case-by-case basis.