Current law declares that the right to wind energy is a property right appurtenant to the surface estate and governs the creation of agreements between an owner of surface rights and a wind energy developer.
The bill amends and adds relevant definitions, including the definition of a wind energy developer of record, which is the wind energy developer named in an agreement that is recorded in county land records. The bill also specifies that:
- Like other agreements affecting the title to real property, until a wind energy agreement is recorded, it is not binding on anyone other than the parties and those with notice of the agreement.
- Rights under a recorded wind energy agreement executed on or after July 1, 2012, expire after 15 years unless the agreement provides otherwise or unless wind-powered energy generation has occurred on the subject property.
- Once a wind energy developer has determined to begin construction of generating facilities under a wind energy agreement, the developer may record an affidavit stating when construction will begin. If no affidavit is recorded, the developer's rights will expire after 15 years unless the agreement provides otherwise.
- A wind energy agreement, as well as any release due to the termination or expiration of rights under the agreement, must be recorded in both the grantor and grantee indices and under the names of all parties.
- If a recorded wind energy agreement expires or is terminated, the wind energy developer of record is required to record a release. If the developer fails to do so within a specified period, the developer and any transferee of the developer's rights under the agreement are jointly and severally liable for any damages to the surface owner that result from the failure to record the release.