Do special rights apply to individual solar modules of a ground-mounted photovoltaic system? The Federal Court of Justice (BGH) recently dealt with this question and referred back four rulings of the Higher Regional Courts (V ZR 225/19/V ZR 8/20/V ZR 44/20 and V ZR 69/20). The plaintiff in these proceedings was an insolvency administrator of a company that had purchased a photovoltaic system in 2010. This had previously been erected on the property of a third party.
The company, which is now insolvent, had sold 5,000 of these modules to 65 investors. These in turn leased the modules to a subsidiary of the company. Now the higher regional courts must examine whether the modules continue to belong to the investors or whether they are to be awarded to the insolvency administrator. The background to this is that, among other things, it is not clear whether the modules are essential components of the overall investment under Section 93 of the German Civil Code.
According to the BGH, whether this is the case is determined by the circumstances at the time of the connection, if it is important whether existing rights of third parties to the component have ceased to exist as a result of the connection. If it has to be assessed whether the investors have rights to a solar module that has already been inserted into the photovoltaic system, according to the BGH, the circumstances at the time the right arose are decisive. It is also decisive which consequences the removal would have had at that time. If the modules could still have been replaced by comparable models at the time of transfer in the event of separation and could have been used in other systems, they would have been eligible for special rights.
Source: BGH (V ZR 225/19, V ZR 8/20, V ZR 44/20 and V ZR 69/20)
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