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Real Estate Law Issues for Solar Energy: Introduction to Government Incentives

Once the sole domain of the ecologically minded, the green building movement has gone mainstream. Part of the green building movement has been the increase in solar power use in homes and businesses. The decision by homeowners and businesses to install solar electric systems, which are also known as photovoltaic (“PV”) systems, may be made for a variety of reasons. Some want to preserve fossil fuels and reduce air pollution. Some want to invest in an energy producing improvement to their property. Still others like the independence of a solar system, making them less vulnerable to increases in energy prices. A number of government incentives have helped spur this growth of the solar market. However, the increased interest in solar energy and solar systems has created certain real estate law issues, including: (1) the creation of solar easements, (2) restrictive covenants and homeowner’s association requirements, and (3) compliance with zoning and building codes. This article highlights the current state of the solar market and government incentives, with future articles highlighting each of items (1) through (3) above.

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Bailout Provides Significant Expansion & Extension of Business Energy Tax Credit

In a previous article here at GRELJ, I discussed the Section 179D Energy Efficient Commercial Buildings Tax Deduction, which was extended by the Emergency Economic Stabilization Act of 2008 (again, the formal title for the $700 million federal bailout that was passed back on October 3). As I also noted previously, the Bailout also significantly expands the Business Energy Tax Credit that was previously enacted as Section 48 of the 2005 Energy Policy Act. The duration of available tax credits for solar energy, fuel cell, and microturbine installations has been extended for 8 years until December 31, 2016. The Bailout also increases the available credit amount for fuel cell installations and provides new credits for small wind energy systems, geothermal heat pumps, and combined heat and power systems. Generally speaking, in order to qualify for the Business Energy Tax Credit, the original use of the system must begin with the taxpayer, or the system must be constructed by the taxpayer. It must also meet any performance standards in effect at the time the system is acquired (such as those set forth by the manufacturer). The equipment must also be operational during the year in which the tax credit is claimed in order for the taxpayer to earn the credit. This article provides a brief overview of the available credits for each qualifying type of technology.

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