What should be in your solar farm agreement?

Agreements will vary from developer to developer, and it is important to instruct a solicitor who specialises in such agreements, to advise you before signing.

1. Can I use the lands during the term of the option agreement?

During the time of the option period, you can use the land for normal farming purposes, subject to the condition that it will not interfere with or damage the developer’s equipment.

In the option agreement, you give the right to the developer to enter on your land with all necessary plant equipment, materials and vehicles, in order to carry out various activities such as cumulative landscaping, visual impact assessments, traffic, transport and access studies and archaeological and geotechnical habitat and environmental tests, in order to submit their application for planning.

They may also require pedestrian and vehicular access to the property.

However, there are terms in the agreement, normally, whereby you would be consulted and it would be agreed in advance when they would come into the property.

They would make good any damage occasioned, to your satisfaction, and they would keep you informed in respect of all aspects of the planning process.

2. Can the developer sell the benefit of the option agreement or lease to another party?

In the agreements, typically, a developer will have the right to sell or transfer the benefit of the option agreement or lease to any group company, bank, funder or financial institution providing finance to the developer, without your consent. However, if they propose to transfer or sell to a third party, they require your consent.

However, such consent is not to be unreasonably withheld or delayed.

3. Can I make sure that the developer does not have an automatic right to renew the lease at the end of the term?

Normally, the terms of the leases range from 25 to 35 years.

A Deed of Renunciation should be inserted into the lease whereby the developer renounces any rights that they may have under the Landlord and Tenant (Amendment) Act 1980.

This means that the developer would not have an automatic right to renew the lease, and if the relationship is working well and everyone is happy, then that can be an opportunity to renegotiate new terms, and enter into a new lease at that point.

4. I was thinking of transferring the lands to my son in a few years’ time? Will entering into the option agreement or lease prevent this?

No, it will not. In the event that you wish to gift, sell, transfer or otherwise dispose or convey the property to a third party, you must give the developer a specific written notice with a specific notice period.

You will be obliged then to ensure that the third party is bound from the date of the completion of the gift, transfer, sale etc. and steps into your shoes effectively, as regards the obligations and liabilities under the option agreement and lease.

2. What if someone has an accident on my lands? Can I get sued?

In the agreements, there should be a clause that the developer is bound to put in place a suitable public liability and employer’s liability policy, and you should ensure that you are evidenced of same, upon the signing of agreements, and that you are given a copy of the insurance policies every year throughout the term of agreements.

In the agreements also, there should be a clause whereby the developer indemnifies you in respect of any accidents, damages, costs, claims etc. arising on foot of their use of the land and arising directly from any breach of covenant or obligation of the tenant.

Similarly, it would be prudent for you to put your own public liability and employer’s liability insurance in place, especially if you are still using the land throughout the terms of the agreement, for example, for grazing sheep.

• Karen Walsh, from a farming background, is a solicitor practising in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
• Email: info@walshandpartners.ie Web: www.walshandpartners.ie