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 higher regional court rulings (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 investors in turn leased the modules to a subsidiary of the company. The higher regional courts must now examine whether the modules still belong to the investors or whether they should 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 in accordance with 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 depends on whether existing third-party rights to the component have been extinguished as a result of the connection. If it is necessary to assess whether the investors have rights to a solar module that has already been integrated into the photovoltaic system, the BGH states that the circumstances at the time the right arose are decisive. It is also decisive what consequences the removal would have had at that time. If the modules could still have been replaced by comparable models and used in other systems at the time of transfer of ownership in the event of separation, they would have been eligible for special rights.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)
© photodune.net
