Set Guidelines for Solar Energy Installation
by Andrea Brescia
From cities to suburbia, solar panel installations are dotting the rooftops of houses and apartments, school parking lots, fields, and even street lamps. Solar is steadily becoming a growing alternative for homeowners and businesses to reduce utility costs, use cleaner energy, and, in some cases, make a few bucks by selling the surplus back to the energy grid. Most states now have provisions that protect an owner’s access to the sun. So what do you need to know when your members want to install solar panels in your community? How can you help make solar installation an easy win for both your members and the association?
With more and more states passing solar rights and easements legislation and solar panel installations in HOAs on the upswing, here are a few tips to help you set solar guidelines and help your members harness the sun.
Four Steps for Setting Solar Guidelines
When members ask about installing solar panels on their property, or if the board considers installing panels on common elements, take the following steps:
Step #1: Check your state and local laws. Ask your association’s attorney to check your state and local laws to see if there are provisions that govern solar installation. Most states have legislation in place that says a community association cannot prohibit an owner from installing a solar collection device on her property. Regardless of the language in your governing documents, states’ solar rights give an owner the authority to install solar systems on a residential property that is otherwise subject to private restrictions, such as a homeowners association governed by CCRs.
In addition, many states also have solar easement provisions in place, which give rights to an owner to access direct sun for the purpose of collecting sunlight into a solar energy system. If your declaration contains language that prohibits solar installation on a unit or owner property and is in direct conflict with the laws in your state, address this language the next time your declaration is modified. The same goes for your policies, rules, and regulations: Review them for any language that bars installation of solar energy collection devices and make sure the language conforms with state law. (See "States with Solar Rights or Easement Provisions," here.)
Step #2: Review your architectural guidelines. Depending on your state law, you may be able to have some control over the location of the installation. Check your architectural guidelines to see if they contain language that is not in line with your state legislation regarding solar installation and amend the language if needed. Usually, a community association may impose reasonable restrictions on the size, design, location, and pitch of the panels, but its architectural guidelines may not: (1) increase the cost of the solar panels to the owner; or (2) decrease the performance of the collection device. Courts have ruled against associations that have tried to enforce architectural guidelines that attempted to do either.
Example: In a 2003 Arizona case that dragged on for five years, two homeowners installed solar panels on their properties to reduce energy costs and heat their pools so they could exercise in the winter, despite their association’s restriction on solar panel installations. The homeowners had installed the panels on their roofs, while the architectural review guidelines required that they be installed on a patio or behind a screen.
The association asked a court for an injunction that would force the homeowners to remove the panels because they didn’t conform to the architectural review guidelines. The homeowners argued that conforming to the guidelines would compromise the effectiveness of the panels and be prohibitively expensive. The court denied the association’s request and ruled for the homeowners. The association appealed.
The Arizona Court of Appeals upheld the lower court’s ruling in favor of the homeowners. The court said that the association’s restriction on solar panels "effectively prohibited the installation and use of SED's (solar energy devices)," in violation of a state law that had been passed in 1979, ARS-33-439, to protect individual homeowners’ private property rights to use solar energy [Garden Lakes Community Assn. v. Madigan/Speak, February 2003].
“In Florida, the rule is that the HOA can regulate where the solar device is placed on the roof as long as the regulation does not interfere with the performance,” says Florida attorney J. Robert Caves, III. “We prefer that it’s placed on the back of the house, but if the panels have to be on the front to get the exposure, that’s okay.”
In a condominium association, solar installation is a little trickier. Condo associations with hi-rise buildings are rarely in a situation where installing solar panels on the roof will power the whole building. Generally speaking, the collection panels won’t generate enough electricity for everyone.
According to Hawaii attorney Richard Ekimoto, installations on these types of properties tend be used to power the common areas. In cases where a condo association has the rooftop capacity to allow an individual owner to install panels on the roof, it’s important to add a provision that states the owner agrees to remove the solar unit when the common area needs to be repaired or changed, such as if the roof needs to be replaced. Once the work is complete, the owner can put the installation back.
Step #3: Protect property during installation. If you’re managing a condo association with a rooftop installation, use a licensed, experienced installer who will insure your association against damage during installation. Investigate how any type of installation is going to affect the water tightness of the roof. A credible contractor should be able to assist you with any issues, including accidental punctures during installation. Also, ask your installer about any maintenance issues. Panels sometimes need to be washed down when they become dirty so that they operate at maximum efficiency.
Step #4: Work with roof company to maintain warranty. The last thing you want is to install a solar energy system to reduce expenses only to have your roof warranty voided by the installation. Work with the solar installer and your roofing contractor to determine how the installation can be made to retain the roof warranty and still achieve the proper installation. While residents in planned communities are responsible for their own rooftops, sharing this information with them will help protect their investment and achieve results in line with your architectural design guidelines.
Practical Pointer: Encourage members to contact the local utility provider to see if there are rebates or other incentives for installing solar devices.
Andrea Brescia is a New Jersey-based editor who writes for housing-related publications and organizations.
J. Robert Caves, III, Esq.: Southwest Florida Offices of Becker & Poliakoff, P.A.; JCaves@bplegal.com.
Richard Ekimoto, Esq.: Ekimoto & Morris, LLLC, Honolulu, HI; firstname.lastname@example.org.
Clifford J. Treese, Esq.: Association Information Services, Inc., Pleasanton, CA; Clifford.Treese@gmail.com.