Bypass Hurdles with the HOA and Landlord

Tame the HOA with the Solar Rights Act!

Homeowners or tenants in HOAs, apartment dwellers and condo owners are often discouraged from energy upgrades like solar panels, Plug-In Vehicle charging, LED lighting and energy storage.  With a little research, anyone can take steps towards energy independence.

California’s “Solar Rights Act” defends your right to produce power in California.  The HOA may restrict, deny or challenge solar installations, but there is a path to follow to win: 

1. Find a neighbor that installed solar power or filed an application with the HOA to install solar power, and ask them about their experience. (If there are no previous applications, it may be helpful to find a neighbor that installed EV charging, solar water heating, energy storage and/or LED lighting.)

2. Request and review the HOA rules and regulations regarding solar power systems.

>Are there any covenants that apply to solar photovoltaic energy systems? ​

>>If there is a restrictive covenant, is it specific (mentions solar energy systems) or generic?

>Is an Architectural Review Committee involved?

>>Do they have a specific set of criteria to evaluate solar energy systems?

>Is the HOA a public entity?

3. Request HOA permission to install, in writing, by submitting the solar electrical design permit application package to the HOA and wait for response 45 days.  

4. Once approved, carefully read any agreements that the HOA requires as a condition of permission to install.  (i.e., “Maintenance/Indemnity Agreement”).

5. Negotiate the terms of an agreement or sign the agreement.  

6. Installation company submits design drawings to the Authority Having Jurisdiction (permit office).

7. System is installed.

Makello and Green Energy EPC since 2014; no roof leaks, no problems!

The HOA can advise you where to put your solar power, so long as it does not increase the cost to a certain extent, however they cannot stop you from getting solar.
​  
The HOA can influence your decision about the color of the modules or the trim, or the height of the array over the roof, or the roofing method, or they may require a trim strip at the front or the sides of the array to enhance the aesthetics in keeping with the aesthetics in the community.

The law provides the ability to install solar despite an HOA not wanting it.  See California Civil Codes 714  and new for 2018  714.1:

“(b) An association shall not:
​(1) 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.

(2) 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.”

California’s Solar Rights Act protects your interests in energy efficiency upgrades.  The recommended path is to complete the system design drawings and submit them to the HOA, thus starting a 45 day review period.  Until a tenant submits the drawings to the HOA, the HOA may continue to delay the project indefinitely, with exploratory meetings, changes of plans, excuses, misinformation, etc.

California AB2180 of 2008 provided even more consumer protections under the Civil Code by providing that any homeowners’ association that is not a public entity that willfully violates the Solar Rights Act must pay the solar system owner a civil penalty not to exceed $1,000. AB 2180 further provides that the approval or denial of any application submitted to authorize the installation of a system must be made in writing within 60 days. If the application is not denied within 60 days it will be deemed approved unless the delay is the result of a reasonable request for additional information.”

If the HOA does not reply to your request within 60 days, your request is automatically approved, according to this link that seems to have an easy to follow guide for what to do:
https://solartown.com/learning/solar-policy-and-incentives/homeowners-duke-it-out-with-their-homeowners-association-how-best-to-solve-the-problem-part-2/

If you find that the HOA rules and regulations are in conflict with provisions in California Solar Right’s Act, then see below for a draft of a letter to the HOA, to include with your submission: 

The purpose of this letter is to inform the HOA of relevant laws, policies, and regulations that govern the installation of solar energy systems in California, and to describe the potential repercussions for improper denial of solar projects.

California’s Solar Rights Act protects the homeowner and tenant’s rights to energy efficiency upgrades by limiting covenants, conditions, and restrictions on solar installations, and by requiring timely review.  
HOAs are prohibiting from:

(1) prohibiting outright installation of solar energy systems, 
(2) imposing restrictions that significantly increase the cost of installation, 
(3) imposing restrictions that significantly reduce the efficiency of a system.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=714.&lawCode=CIV

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=714.1.&lawCode=CIV

An association shall not:

(1) 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.
   
(2) 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.

California Civil Code consumer protections provides that:

(1) any homeowners’ association that is not a public entity that willfully violates the Solar Rights Act must pay the solar system owner a civil penalty not to exceed $1,000. ​

(2) the approval or denial of any application submitted to authorize the installation of a system must be made in writing within 45 days. If the application is not denied within 45 days it will be deemed approved unless the delay is the result of a reasonable request for additional information.

 

Examples of suspicious clauses in a Maintenance/Indemnity Agreement, that you may want REMOVED or MODIFIED before signing, because they leave the original HOA homeowner on the hook for repair costs indefinitely, even after the system is removed, even after the property is sold to future HOA homeowners:

F. The parties agree and acknowledge that installation, use and/or maintenance of the Photovoltaic Solar System by the Owner will, or may, cause additional and/or increase maintenance or repair burdens or costs on the Association, may adversely affect or impair any roof or other warranties which the Association has or may have been able to obtain, and cause damage or the potential for damage to common area, the extend and/or potential for which cannot readily be determined. The Parties therefore agree that the entire burden of the cost of all future maintenance, repair, and replacement relating to the Photovoltaic Solar System and to common area affected by the Photovoltaic Solar System, shall be borne by the Owner.

​H. Owner and Association intend that this Covenant be made and entered into pursuant to the provisions of California Civil Code Section 1468, and that this Covenant shall run with the land of Owner and that it shall be binding upon each successive owner of the Subject Property during their ownership of any portion of the land affected hereby, and upon each person having any interest in the land derived through any owner thereof.

Examples of clauses in a Maintenance/Indemnity Agreement, that you may want INCLUDED before signing:

(F) Association has approved Owner’s Application on certain terms and conditions including that Owner enter into the following Agreement;

TERMINATION OF AGREEMENT
This Agreement shall only terminate if any of the following occurs:

​A.  Alteration/Destruction. This Agreement shall automatically terminate if the existing structure, which is legally described in Exhibit “A,” is removed or destroyed. This Agreement shall also automatically terminate if the Solar Energy System is removed from the Residence and after the time period under which any legal claims may be brought relating to the installation, maintenance and removal of the Solar Energy System. ​

​B. Mutual Agreement. This Agreement shall terminate upon mutual agreement between Association and Owner or Owner’s successors in interest. For the purpose of this Agreement, the term “Owner” shall mean the then-existing owner of the property set forth in Exhibit “A.”

CONVEYANCE OF TITLE
In the event Owner conveys title of the property described in Exhibit “A,” this Agreement shall automatically transfer to the new owner and all subsequent owners, and current Owner shall have no further responsibility under this Agreement.
For more information, visit www.cleantechlaw.com
James Birkelund, jbirkelund@cleantechlaw.com
Jack Jacobs, jjacobs@cleantechlaw.com

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