Do Homeowners In HOAs Have The Right To Install Solar In Common Areas? Posted on Mar 13, 2017
The answer is: maybe. The right to install solar in the common areas of multi-family housing and common-interest developments depends on state law. However, even homeowners in pro-solar states like California are struggling with statutory language around this issue that needs to be clarified. This question is popping up around the State of California right now. A very good case can be made that the California Solar Rights Act (“Act”) provides homeowners with the right to install solar in common areas subject to only “reasonable” restrictions.* Unfortunately, due to the Act’s slightly ambiguous nature some anti-solar groups and attorneys are taking an alternate reading of the Act telling Home Owner Associations (HOAs) that they can flat out prohibit homeowner solar installation requests in the common areas of their properties. Of course, the problem lies in that someone is right and someone is wrong, which means either the court system or the legislature will be deciding this issue.
The specific sections of the Act that govern what restrictions HOAs and a property’s governing documents can place on solar installations state that only “reasonable restrictions” may be placed on solar energy systems requests. “Reasonable restrictions” are defined as those 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.” California Civil Code § 714(a)-(b). Section 714.1 of the Act permits Associations to “impose reasonable provisions” that restrict solar energy installations in common areas despite the cost, efficiency, and comparable system criteria provided for in Section 714. Because the legislature covered this issue in two separate sections without clear guidelines, the right to install solar in common areas is vulnerable to being challenged due to California law requiring a two-thirds membership approval for an Association’s grant of exclusive use of a common area to a homeowner. California Civil Code § 4600(b)(3)(J). Although some legal commentators have argued that an Association is not bound by this law due to the exception that it may grant exclusive use of common areas to owners without two-thirds membership approval to “comply with governing law” the argument continues over what the law is.
In the end, the issue will either be handled through an amendment to the Act or a court case. The former would be preferable. The wording of an amendment to the Act would likely be subject to the argument that such change would take away property owners’ rights to govern their land. Notably, however, an argument that California’s electric vehicle (EV) legislation, which clearly sets forth the rights for EV owners to install charging stations in common areas, in this regard failed. When the legislature dealt with this precise issue by setting forth what constitutes reasonable restrictions on charging stations in California Civil Code § 4745, it was argued that such rules were unlawful for requiring EV stations to be allowed in common areas without a 2/3 membership approval. The Community Association Institute (“CAI”) argued that the EV Legislation was an unconstitutional taking. The legislature decided that the EV legislation did not involve an unconstitutional government taking based on a finding that the EV legislation was distinguishable because private individuals use the common area, not the government.
The State of California’s experience with its Solar Rights Act, including these recent developments, are just a hint at what can be expected in other states across the Nation. As solar continues to set record growth rates, states will likely find themselves in the position of having to either create solar rights laws or amend the ones already on their books.
* The California Solar Rights Act is codified in California Civil Code §§ 714, 714.1, 801, and 801.5, Government Code §§ 65850.5, 66475.3, and 66473.1, and Health and Safety Code § 17959.1.