The legislative amendments adopted in the autumn of 2023 recognized and regulated the possibility of establishing special energy easements under the Energy Act (EA) in respect of site-specific energy facilities for the production of energy from renewable sources. Until then, such a possibility had been regulated only in respect of “traditional” linear energy facilities, such as gas pipelines, electricity transmission lines and similar infrastructure.
The 2023 amendments to the EA were long-awaited and welcomed by the wind energy sector. Prior to their introduction, the development of wind energy projects often involved resorting to legal structures that were not entirely “straightforward” in order to establish rights of access to and use of neighbouring properties falling within the easement zones of wind turbines (technically defined under the Ordinance on the Easements of Energy Facilities), which are necessary for the construction and normal operation of wind turbines (for example, for the positioning of crane platforms, access by personnel and machinery, etc.). Such structures often involved applying, by analogy, regimes under the Spatial Development Act and establishing “unusual” rights such as a “right of rotor passage” or a “right of blade overhang” over neighbouring properties. These structures were rightly subject to criticism because, in the absence at that time of a statutory framework governing energy easements for site-specific facilities, they could, at best, give rise to contractual rather than proprietary rights over the affected properties. This, in turn, did not provide sufficient assurance as to the enforceability of such rights against third parties.
This is why the 2023 amendments were of not only theoretical, but also significant practical importance for the development of wind energy projects.
Despite the legislative amendments and, perhaps, due to the lack of sufficient practice or an insufficient understanding of the new legal framework, some of the above-mentioned legal structures, or combinations of such structures with the specific statutory regime governing energy easements, can still be encountered today.
In addition, practical obstacles still exist in the registration of special energy easements under EA, despite the statutory framework governing this matter having been in place since as early as 2012. In some local Registry Offices, there is still a degree of uncertainty as to the legal nature of energy easements, the conditions for their establishment, the type and content of the documents required for their registration, and the procedure and manner in which such easements should be recorded in the Land Register. This not infrequently results in refusals to register them.
We are therefore pleased to share that, at the beginning of this summer, KDP’s Real Estate and Construction team assisted in the successful registration of special energy easements under the EA in connection with the development of one of the new wind energy projects with potential for actual and near-term implementation in Bulgaria, on which we are pleased to advise. The registration was carried out entirely in accordance with the EA and the applicable statutory procedure and in line with the new legal framework, which, to the best of our knowledge, constitutes a precedent at present.
For further information contact:
Irina Stanimirova, Managing Associate
irina.stanimirova@kdp-law.com
