The Ins and Outs of Solar Panels In HOA Communities

Solar Panels HOA.jpg

Solar panels are the wave of the future and present an attractive option for homeowners looking to harness the sun as a natural energy source.  The cost saving benefits of the usage of solar energy and the reduction of the carbon footprint of a neighborhood are great reasons why homeowners consider solar energy.  There are also often tax credits or other economic  incentives for homeowners to install solar panels on their homes. 

Another large factor is the improvement in technology that has occurred since solar panels initially became an option as a source of energy for homes.  However, for homeowners living in communities governed by homeowner’s associations, additional challenges and concerns arise.  The installation of solar panels often leads to discussions about how the solar panels change the look and character of the neighborhood or that they may cause a decrease in property values for the neighborhood.   

The legal back drop that exists also involves a careful balancing of a homeowner’s right to use solar energy and a community’s right to control the aesthetics of a neighborhood.   The question then becomes who can decide whether a homeowner can install solar panels in an HOA Community and if so, what are the other enforceable rules that might govern the installation and maintenance of such solar panels.  The following article provides guidance to homeowners living in HOA governed associations about many of the concerns and issues arising from the installation of solar panels in such communities.                                 

Restrictive Covenants and Solar Access Rights Statutes

One of the first things that a homeowner needs to determine before installing solar panels in a home located in an HOA community is whether there are any restrictive covenants or homeowner’s association rules that prevent or restrict a homeowner’s right to install solar panels on his or her home.  While many homeowner’s associations do attempt to limit the installation of solar panels, there are also many states that have enacted what are called “Solar Access rights” laws.  Examples of states that have enacted “solar access rights” laws including California, Utah, Texas, Arizona and Florida.  The purpose of these laws is to prevent homeowner’s associations from banning solar panels and often also prevents them from having contracts that restrict homeowners from installing solar panels on their homes.  The laws vary on a state by state basis and for this reason, homeowners should check applicable state law before installing solar panels.

In addition to determining applicable state law, it is also a good idea to consult your homeowner’s association rules to determine if there is an approval process for the installation of solar panels  or if there are other applicable rules that determine where solar panels can be installed.  It is entirely possible that while a state law may prevent a homeowner’s association from having some rules that come into play.  For example, HOA’s can usually determine where the panels can go and how they are installed even in states that have solar access laws.  It is also often the case that homeowner’s associations have a process for the approval of the design, installation or placement of solar panels and sometimes that may require presenting plans or pictures of the proposed system in order to gain approval of the same. 

Federal Legislation

HR 2454 – The American Clean Energy and Security Act was a proposed federal law that made it illegal for a homeowners association to restrict the installation of solar panels. This proposed law included provisions prohibiting homeowner’s associations from enacting rules limiting solar panel installation with a few exceptions.  This proposed federal law would have overridden any HOA rules and private contracts that prohibit solar panels, with a few basic exceptions.  While this did not pass, it is possible that similar legislation may come into play in the future.  In either case, many states already offer similar protections for homeowners living in communities with HOAs that would allow homeowners the ability to install solar panels.  A big factor in future federal legislation will also be the political climate that exists.  Changes in political party and even within the party differing leadership have played a large role in the legislation that has been proposed in this area.

Sample Statutes:

In the State of California, The Solar Rights Act was passed in 1978.  This particular law includes protections to allow consumer access to sunlight and also limits the ability of homeowner’s associations and local government to pass laws or rules preventing the installation of solar energy systems.  This law can be found at California Civil Code Sections 714 and 714.1 .   As one of the older statutes on the books, the California law shaped much of the development of similar laws that now exist in about ½ of the states. The California statutes (an excerpt of which is included below) is a relatively simply and straight forward law that is intended to make it much easier for residents of California to harness the benefits of solar energy through the installation of solar panels.  As set forth below, California Civil Code § 714 provides the following:

 

714. (a) Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.

(b) This section does not apply to provisions that impose reasonable restrictions on solar energy systems. However, it is the policy of the state to promote and encourage the use of solar energy systems and to remove obstacles thereto. Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.

 

It is apparent from reviewing these portions of the statute that the state of California in general desires to promote the use of solar energy whenever possible. However, not all states and/or homeowner’s associations share this view point of the use of solar panels.       

Typical Exceptions to Solar Access Rights Statutes                                                                      

Most  solar access rights statutes have exceptions for special situations where solar panels can be denied or limited.  For example, historic districts often have the right to restrict solar panel installation in order to protect the historical character of a neighborhood.  Sometimes historic districts might also require that solar panels installed on rooftops are not visible from the public right of way and that any equipment that is installed on the roof matches the color of the roof.  Obviously these vary by location but sometimes these additional hurdles make it more difficult and expensive for homeowners to install solar panels.   Prior to deciding to move forward with a solar panel project, home owners would be well advised to find out if their home owners association or historic district as the case might be has any additional requirements or restrictions that would apply to the installation that the home owner is considering.

Solar Easements                                                                                                                                        

Another important thing for homeowners to be aware of is that some states also provide home owners additional legal rights which are referred to solar easements.  What these easements do is provide homeowners with a means to protect their home’s access to sunshine which is obviously important for homeowners who have solar panels installed.  In states that provide for solar easements, homeowners can negotiate with their neighbors to make sure that they protect their right to sunlight and to prevent objects from getting in the way of that sunlight, such as trees, buildings and other items that might cause excessive shade for a homeowner which interferes with their ability to effectively use their solar panels.  Homeowners wanting to negotiate this type of easement should be aware that this is a voluntary process meaning that neighbors do not necessarily have to agree to a solar easement.  If there is a solar easement drafted, it should include a detailed description of the size of the easement including the height for which the easement would apply.

The Bottom Line – Can a Homeowners Association prevent a homeowner from going Solar?                  

The answer to this question – can my homeowners association limit by ability to install solar panels – clearly depends on where someone lives.  The trend is certainly in favor of encouraging solar panel usage and by the same token, preventing homeowner’s associations from limiting those rights.  In approximately ½ of the states, homeowners have well protected rights to install solar panels.  Even in states where a homeowner’s rights to install solar panels are well protected, homeowners are still well advised to work within the process and procedure of their homeowner’s association in order to have the most positive and collaborative process.  At the end of the day, each homeowner is still part of their HOA and as with any other HOA related issues, finessing the situation to have cooperation and consensus is of course always the best policy.