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HOA Homefront: Can the board ban solar panels?

Q: Can a HOA prevent us from placing solar panels on the roof of our townhome?  We are in an older condominium association and the roofs are hard, flat shingles that were just replaced. If we agree to be responsible for the repairs needed due to our solar panels (not the ultimate roof replacement in another X years or whatever), do we have the right to place solar panels on the roof above our townhome? Looking forward to your answer. — M.F., Carmel Valley.

Q: Can my HOA deny me from installing solar panels on my roof? — M.H., Rancho Santa Fe.

Q: I submitted a formal application to my HOA architectural committee for the installation of solar panels on my roof, believing that the Civil Code section 714 is quite clear that my application can be “reasonably” restricted but not denied. I have since heard that the HOA lawyer advised the board that they could, in fact, deny my application if they were to come up with “3 good reasons.” Does this sound plausible to you? Where exactly is the law on rooftop solar in common interest developments? — R.O., Whittier.

A: California’s strong preference for solar energy installations is reflected in three Civil Code statutes, Sections 714, 714.1, and 4746. Section 714 prohibits governing documents from banning solar installations but allows the imposition of “reasonable” restrictions. However, the term “reasonable” per subparts (b) and (d)(1)(A) means restrictions that do not decrease the system’s efficiency by more than 10% or increase its cost by 10% or $1,000 (whichever is less).

Furthermore, Civil Code Section 714.1(b)(1) prohibits HOAs from prohibiting installations on the roof of one’s home, carport or garage. This means that, even though a townhouse condominium roof is typically a common area and not individually owned by the unit owner, the HOA cannot completely ban solar installations on those common-area roofs.

The statutes especially allow certain requirements, which are listed at 714(c) and 714.1(a). The installation must meet all applicable codes, the homeowner can be required to indemnify the HOA from any loss or damage arising from the system and to maintain, replace or repair the roofs under the system. Section 4746 also allows the HOA to require that the installer be properly licensed and for the homeowner to keep insurance in force if the installation is on a shared roof.

Solar system applications are required by Section 714(e) to be handled like any other architectural application and are automatically deemed approved if the HOA has not approved or denied the application within 45 days (absent any reasonable but unresolved questions from the HOA).

HOAs need to exercise caution regarding solar system applications. HOAs found willfully violating this statute can be ordered to pay a civil penalty of up to $1,000, and the prevailing party will be awarded their legal costs.

So, R.O., I disagree with your HOA lawyer’s alleged comment that the HOA only must come up with “3 good reasons” to deny a solar installation. The allowable reasons are right in the statutes, and if they aren’t listed, they are suspect at best.

Next week I’ll address solar installations from the HOA point of view.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kell[email protected].

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