Solar for Our Whole HOA? Can Mine Be On a Common Area Roof?

By Kelly G. Richardson, Esq. CCAL

Dear Kelly: We are a small HOA. We are debating going with community solar contract vs individual solar installation contracts and looking for information to help us with the pros and cons of each. Do you have any information, or knowledge of a HOA that approved community-wide solar installation? Can you give us some insight as to the pros and cons of community contracted solar installation? Thank you, D.A., Poway

Hi Kelly, I live in a recently constructed (small) condominium building, one of (several) in our complex. While I have individual rights to solar, it seems to make more sense to address the building's shared energy costs; rather than my individual bill. There seems to be nothing in our bylaws to address this situation. What is required to proceed? I assume we need individuals to sign off on their rights and accept an overall assessment. My thought is to do one building first and share the savings with the overall HOA evenly. Other buildings would be added on a one by one basis to spread out the costs. Thanks, R.E., San Diego

Dear D.A. and R.E.: Your HOAs may need to check with legal counsel, as some CC&Rs limit capital expenditures without a membership vote and the cost may require membership approval as a special assessment. It is also possible that a CC&R amendment could be necessary. Sharing of utilities sometimes reduces the economic incentive of conservation, since residents do not directly pay more if they use too much electricity. I have seen this occur many times in associations, which do not have individual water meters. You might investigate whether submetering would be possible to measure individual unit usage. I applaud your HOA for considering such an upgrade to your complex but take care to consider and resolve any legal impediments from the CC&Rs before you proceed.

Sincerely, Kelly

Hi Kelly: If the HOA owns the roof, do I still have a right to build solar on it? The HOA manager said that solar panels are not allowed on association roofs and our CC&Rs say that the roofs among other things belong to the association. Civil Code 714 and 4746 seem to imply, regardless of ownership, that a resident has the right to build solar on the roof over their head.  I would like to verify this is true before notifying my HOA of this in case I am reading it wrong. I would be interested in pursuing legal action in order to build solar if they continue to be obstinate after notification. K.C., Lake Forest.

Dear K.C.: Your manager is wrong. You do have the right under Civil Code Section 714(b)(1) to install a solar energy system on a common area roof over your personal residence, garage, or carport. If for some reason your roof is shared (such as in a multi-story building) Civil Code Section 4746(b)b)(1) allows you to pay for and submit a “solar site survey” showing a proposed fair allocation of the usable portion of the shared roof. Although I have not yet seen shared roofs with enough space to make individual solar installations feasible, it is possible and the statute provides for it.

I hope you don’t need legal action. Best regards, Kelly