Perhaps the most contentious example of forced use of common area for environmental policy purposes concerns the installation of solar energy systems on condominium roofs. The number of U.S. homeowners who have their own solar panels has grown steadily since 2000. The increased interest in harnessing the sun’s power in the face of a rising market for high density residential living seems to have attracted the solar industry’s attention to the growing number of consumers who can’t put panels on their own roofs.
Solar panels have been around for decades, but legislation relating to solar energy systems is evolving rapidly and is, in many cases ambiguous or over-reaching. Across the country, state lawmakers are taking steps to enable private companies, nonprofits, homeowners associations and others to develop and run community solar projects. Approximately twenty-five states currently prohibit or offer the ability to prohibit covenants or restrictions placed upon homeowners which would prevent the installation of solar powered panels and associated devices; however, only California expressly allows the installation of panels on common area roofs of multi-unit condominium buildings. Others suggest that common area installation is permitted with association control. Even homeowners in pro-solar states like California are struggling with unclear statutory language, a situation which has been significantly exacerbated by a recent extension of the California Solar Rights Act.
California Assembly Bill 634 (effective January 1, 2018) amended the Solar Rights Act by providing homeowners with the right to install solar on the common area roofs and adjacent garages and carports of condominium properties, subject to only “reasonable” 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 conversation benefits.” Previously, such installations required the approval of two-thirds of the members to grant exclusive use of common area to an individual owner. This push for all things solar has resulted in California telling community associations what they can do with common area without regard for the right of the association and its members to control their commonly-owned property. This derogation of individual property rights has risen to a level not previously seen on the state or federal level. Some argue that California’s new community association solar rights legislation in particular is an unconstitutional taking of property. As the courts have not yet spoken on this issue, practitioners will have to wait and see, tailoring rules to comply with the statutory requirements while trying to maintain some control over common area through “reasonable restrictions.”
California’s experience with its Solar Rights Act, including these recent developments, are just a hint at what may be expected with other legislation aimed at micromanaging how community associations control their common area. While the California statute (and similar laws throughout the country) effectively nullifying CC&Rs prohibitions regarding solar panel installation, these laws do protect the association’s right to regulate the installation with “reasonable rules.” Given the impact of solar panel installations on maintenance and repair responsibility and property damage liability as well as the impact on community aesthetic, it is imperative that associations adopt solar energy installation policies and procedures to be well positioned to exert what little influence they have left regarding how a resident can install solar energy systems and their responsibility to the association and their neighbors in doing so.