17-04 Wind Energy Property Rights
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<![CDATA[CHAPTER 17-04WIND ENERGY PROPERTY RIGHTS17-04-01.Wind option agreement - Definition - Termination.A wind optionagreement is a contract in which the owner of property gives another the right to produce energy<br>from wind power on that property at a fixed price within a time period not to exceed five years on<br>agreed terms. A wind option agreement is void and terminates if the following have not occurred<br>with respect to the property that is the subject of the wind option agreement within five years after<br>the wind option agreement commences:1.A certificate of site compatibility or conditional use permit has been issued, if<br>required; and2.A transmission interconnection request is in process and not under suspension.17-04-02.Wind easement - Definition.For purposes of sections 17-04-03 and17-04-04, the term wind easement means a right, whether stated in the form of a restriction,<br>easement, covenant, or condition, in a deed, will, or other instrument executed by or on behalf of<br>an owner of land or airspace for the purpose of ensuring adequate exposure of a wind power<br>system to the winds.17-04-03. Wind easements - Creation - Term - Development required. A propertyowner may grant a wind easement in the same manner and with the same effect as the<br>conveyance of an interest in real property.The easement runs with the land benefited andburdened and terminates upon the conditions stated in the easement. However, the easement is<br>void if the following have not occurred with respect to the property that is the subject of the<br>easement within five years after the easement commences:1.A certificate of site compatibility or conditional use permit has been issued, if<br>required; and2.A transmission interconnection request is in process and not under suspension.17-04-04.Severance of wind energy rights limited.Except for a wind easementcreated under section 17-04-03 and as otherwise provided in this section, an interest in a<br>resource located on a tract of land and associated with the production of energy for wind power<br>on the tract of land may not be severed from the surface estate. However, nothing in this section<br>may be construed to prohibit or limit the right of a seller of real estate to retain any payments<br>associated with an existing wind energy project.17-04-05. Wind energy leases - Termination. A lease for wind energy purposes is voidand terminates if the following have not occurred with respect to the property that is the subject of<br>the lease within five years after the lease commences:1.A certificate of site compatibility or conditional use permit has been issued, if<br>required; and2.A transmission interconnection request is in process and not under suspension.17-04-06. Requirements for wind easements and wind energy leases.1.In a wind easement and a wind energy lease, the easement and lease:a.Must be delivered to the property owner with a cover page containing the<br>following paragraph with the correct term of years in the blank and in at least<br>sixteen-point type:Special message to property ownersPage No. 1This is an important agreement our lawyers have drafted that will bind<br>you and your land for up to ________ years. We will give you enough<br>time to study and thoroughly understand it. We strongly encourage you<br>to hire a lawyer to explain this agreement to you. You may talk with your<br>neighbors about the wind project and find out if they also received a<br>proposed contract.You and your neighbors may choose to hire thesame attorney to review the agreement and negotiate changes on your<br>behalf.b.May not be executed by the parties until at least ten business days after the<br>first proposed easement or lease has been delivered to the property owner.c.May not require either party to maintain the confidentiality of any negotiations or<br>the terms of any proposed lease or easement except that the parties may<br>agree to a mutual confidentiality agreement in the final executed lease or<br>easement.d.Must preserve the right of the property owner to continue conducting business<br>operations as currently conducted for the term of the agreement. When a wind<br>energy facility is being constructed and when it is completed, the property<br>owner must make accommodations to the developer, owner, or operator of the<br>facility for the facility's business operations to allow the construction and<br>operation of the wind energy facility.e.May not make the property owner liable for any property tax associated with the<br>wind energy facility or other equipment related to wind energy generation.f.May not make the property owner liable for any damages caused by the wind<br>energy facility and equipment or the operation of the generating facility and<br>equipment, including liability or damage to the property owner or to third<br>parties.g.Must obligate the developer, owner, and operator of the wind energy facility to<br>comply with federal, state, and local laws and regulations and may not make<br>the property owner liable in the case of a violation.h.Must allow the property owner to terminate the agreement if the wind energy<br>facility has not operated for a period of at least three years unless the property<br>owner receives the normal minimum lease payments that would have occurred<br>if the wind energy facility had been operating during that time. For the purposes<br>of this subdivision, the term "normal minimum lease payments" means a<br>payment in the lease or easement called a "base amount" or "minimum<br>payment", or similar language, or if this language is not provided for in the<br>lease or easement, payments at least equal to the periodic payments received<br>by the property owner in the last calendar year that the wind energy facility was<br>in full operation.i.Must state clearly any circumstances that will allow the developer, owner, and<br>operator of the wind energy facility to withhold payments from the property<br>owner.2.The owner of the wind energy facility shall carry general liability insurance relating to<br>claims for property damage or bodily injury arising out of the construction or<br>operation of the wind energy facility project site and may include the property owner<br>as an additional insured on the policy.3.If the terms of the wind easement or wind energy lease are not in accordance with<br>this section, the court may reform the easement or lease in accordance with this<br>section, void the easement or lease, or order any relief allowed by law.Page No. 2Document Outlinechapter 17-04 wind energy property rights]]>