Reader Questions - Can They Reject My Solar?

Hi Kelly,

We purchased a home needing a complete remodel and we took all of the appropriate steps with the Architectural Review Committee (ARC). We submitted additional plans to install solar. Our ARC denied our plans, indicating that they are strongly opposed to solar energy because they feel it takes away from the “tranquility” of the neighborhood. We explained that we have the right to install solar, but they indicated that if we pursue installation of solar panels our application for other remodeling will never be approved. Several other homes in the community already have solar.

The board said they are opposed to any solar in the neighborhood and that our other remodeling could not be approved unless we agree to waive our legal rights to pursue solar for at least four years. They said they don’t mind litigating with community members who don’t do what they say and gave us several examples of lengthy litigation efforts with individuals in the neighborhood.

Have you seen these issues before with HOA battles over solar?

Sincerely,

J.B., San Juan Capistrano

Dear J.B.,

Your board and ARC are completely wrong, and if they keep daring people to sue, someone is going to take them up on the challenge. Your board and ARC need move past the 80’s or they are going to be spending a lot of time in courtrooms in the 2010’s!

The Civil Code contains very strong legal preference and protection for homeowners who wish to install solar systems. Civil Code 714 protects the right of homeowners to install systems on their property, by declaring that CC&Rs, rules or other governing documents banning solar are unenforceable. The preference for solar was expanded still further at the beginning of 2018 with the addition of Civil Code 4746, which clarifies that even condominium owners may install solar systems on common area – subject to some important limitations and conditions.

If the solar system is to be installed upon your roof or your separate property, there is not much the association can do about it. In fact, if the HOA imposes conditions which either impact the efficiency of the system by 10% or adds more than $1,000 in cost to the system, it is considered an illegal “ban.”

In condominium associations or in attached planned developments in which the HOA maintains and repairs roofs, owners should expect that if they install a solar system the association will require that they insure it, take responsibility for roof leaks, and promise to remove the system if the association needs to work on the roof. These promises are best accomplished with a “common area alteration agreement” recorded against the property.

While some companies offer leasing arrangements for solar systems, homeowners may wish to obtain legal advice of their own. I often recommend associations not allow leased solar systems on common area roofs, since the HOA has no direct control over the leasing company which still owns the system.

The demand you “waive” your right to install solar is almost certainly illegal. Tell your ARC and board to see the (sun)light and stop fighting a battle the Legislature ended years ago – or ramp up their legal defense budget because under Civil 714(g) the loser pays the winner’s legal fees.

Thanks,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.