The foundation stone for a wind energy or ground-mounted photovoltaic project is laid with the conclusion of a utilisation agreement. The required land should be secured for as long as possible so that the operating life of a plant is utilised and the investment is profitable. For this reason, a fixed term is regularly agreed in utilisation agreements and ordinary termination before the end of this term is excluded.
In order for the combination of agreed term and exclusion of ordinary termination to be fully effective, particular attention must be paid to compliance with the written form requirement. The written form requirement originates from tenancy law (Section 550 BGB) and states that a tenancy agreement that is not concluded in writing for more than one year is valid for an indefinite period and can therefore be terminated with due notice. According to the case law of the Federal Court of Justice, usage agreements for the construction and operation of wind energy and ground-mounted photovoltaic systems are commercial leases (case reference: XII ZR 129/16 dated 7 March 2018). The written form requirement must therefore be observed. If this is breached, the landowner can terminate the usage agreement within the ordinary notice period regardless of the agreed term - i.e. no later than the third working day of a quarter to the end of the quarter (see Section 580a BGB). Such a cancellation can therefore cause an actually successful project to fail long before the planned end.

To prevent this, care is required from the outset - both when concluding and drafting the licence agreement. In order to comply with the written form requirement, it is important that the licence agreement is signed by both parties in their own hand. Ideally, all pages of the licence agreement should be bound together, but at the very least the pages must be properly paginated and the provisions numbered consecutively. In addition, all essential contractual terms, in particular the parties, the subject matter of the contract, the licence fee and the term of the licence agreement must be regulated completely and unambiguously. Errors often occur in this process. For example, it often happens that it is agreed in a wind energy utilisation agreement that the landowner receives a minimum annual utilisation fee for each wind turbine erected. However, it is not clear from the utilisation agreement or the site plan exactly which area belongs to the wind farm or how many turbines it consists of.

A similar problem often arises with usage agreements for ground-mounted photovoltaic systems if these are erected on land belonging to different owners and the amount of the usage fees for the owners is based on their land area. The licence agreement or an attached site plan must then state exactly how large the total area and the share of the respective property in this area is.

If the exact number of wind turbines in the wind farm or the size of the ground-mounted photovoltaic system are not yet known at the time the contract is concluded, this should be pointed out in the licence agreement and a supplement should be provided to agree these parameters. As soon as the final planning has been finalised, the addendum should also be concluded in compliance with the written form requirement. Clear reference should be made to the existing licence agreement. In addition, care should be taken to ensure that the subsequent additions do not contradict the previous provisions in the licence agreement.

Older licence agreements in particular do not always meet the strict requirements of the written form requirement. However, the clauses often used in the past in licence agreements to cure written form cannot solve this problem. Some time ago, the Federal Court of Justice ruled that clauses that oblige the parties to remedy written form defects and not to terminate the usage agreement by invoking the lack of written form are invalid (case reference: XII ZR 114/16 of 27 September 2017). Something else would only apply if the cancellation was an abuse of rights in an individual case. However, there must be special circumstances to justify this. The Federal Court of Justice requires, for example, that one party was culpably prevented by the other from complying with the written form or that the existence of the other party would be threatened in the event of successful termination.