Homeowners in Common Interest Developments Have Solar Rights Posted on Nov 01, 2021
California, Florida and other homeowners living in common interest developments have the right to install solar systems according to state law. Yet, a large number of common interest developments and their governing associations think they can stop homeowners from installing solar systems.
In states with solar rights laws, like Florida’s Solar Rights Act[1] and California’s Solar Rights Act[2], the governing associations of common interests developments must approve homeowner requests to install solar. Only reasonable restrictions that do not significantly increase the cost of the solar system, or significantly decrease its efficiency, are allowed. These types of laws prohibit a development’s governing documents and homeowners associations (HOAs) from denying solar system installation requests. This even applies to portions of common areas connected to homeowners’ separate property.
In Florida, California and other states with similar solar right protections, any covenants, conditions, or restrictions in CC&Rs or by governing associations that prohibit or unreasonably restrict the installation of any solar energy systems are void and unenforceable. The intent of state legislatures in adopting these types of solar rights laws is to remove obstacles to the use of solar energy systems, and to encourage their installation in order to achieve maximum efficiency at an affordable cost.
Often, contractors and homeowners can overcome obstacles to installing solar in common interest developments by simply educating their governing associations (HOAs) about the law. We provide an appeal letter template for both Florida and California that is designed to educate and overcome governing association (HOA) attempts to deny solar install requests. We also have an overview of the solar rights act law in California, which can be provided as a handout at an HOA meeting. If homeowners run up against particularly troublesome governing associations, they can seek help from their local government counsel or a private attorney to enforce the law and recover their attorneys’ fees under the laws’ prevailing party attorney fees sections.
California’s Solar Rights Act
California’s Solar Rights Act states that associations shall not:
- Establish a general policy prohibiting the installation or use of a rooftop solar energy system for household purposes on the roof of the building in which the owner resides, or a garage or carport adjacent to the building that has been assigned to the owner for exclusive use.
- Require approval by a vote of members owning separate interests in the common interest development, including that specified by Section 4600, for installation of a solar energy system for household purposes on the roof of the building in which the owner resides, or a garage or carport adjacent to the building that has been assigned to the owner for exclusive use.
An action by an association that contravenes these prohibitions shall be void and unenforceable. (Civ. Code § 714.1.)
Associations governing common interest developments may:
- Restrict homeowners to an “equitable allocation” of the common area of roofs, which limits useable roof space; however, Associations must allow requests to install solar on the roof above the building in which the homeowner resides subject to fire code setbacks and within their “equitable allocation.” Further, Associations, must allow homeowners to install solar energy systems on garages and carports over which the owner has exclusive use.
- Require the owner of a separate interest to obtain approval of the association for installation of solar energy systems in a separate interest owned by another.
- Provide for maintenance, repair, or replacement of roofs and other building components that may be affected by installation of solar energy systems.
- Require installers of solar energy systems to indemnify or reimburse the association or its members for loss or damage caused by the installation, maintenance, or use of the solar energy system.
Any restrictions imposed on the installation of solar energy systems may not significantly increase the cost of the system or significantly decrease its efficiency or specified performance. The term “significantly” means an amount exceeding 10% of the cost of the solar system or decreasing the efficiency of the solar system by an amount exceeding 10%, as originally specified and proposed. (Civil Code § 714(d)(1)(A).) A homeowners association must approve or deny an application for solar installation, in writing, and if it does not deny the application in writing within 45 days from the date of receipt of the application, the application shall be deemed approved, unless that delay is the result of a reasonable request for additional information. (Civil Code § 714(e)(2)(B).)
An association that willfully violates the foregoing requirements may be liable for actual damages and required to pay a civil penalty not to exceed $1,000. (Civ. Code § 714(f).) In any action to enforce compliance with the foregoing requirements, the prevailing party shall be awarded reasonable attorney's fees. (Civ. Code § 714(g).)
Civil Code Section 4746 which became effective January 1, 2018, creates an exemption from the prohibition against the granting of exclusive use of a common area to an owner without the approval of more than two thirds of the membership under Civil Code Section 4600. An owner who wishes to install the solar energy system benefitting the owner's unit must notify each owner of a unit in the building on which the installation will be located of the application to install a solar energy system. The owner and the successive owner must maintain a homeowner liability insurance policy at all times and provide the association with a certificate of insurance within 14 days of the approval of the application and annually thereafter.
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[1] Section 163.04, Fla. Stat.
[2] The 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