HOA Homefront – Have a Policy Regarding Solar Power Installations

As the cost of energy increases seemingly every week, an increasing number of HOA homeowners want to install rooftop photovoltaic systems. Here are some key considerations for boards to take into account.

Is the HOA prepared? Reasonable rules regarding solar installations will help both homeowners and the HOA. These rules must be carefully crafted to ensure compliance with articles 714, 714.1 and 4746 of the Civil Code. These rules should address issues such as:

Time limits. Under Section 714(e)(2)(b) of the Civil Code, if the request is not approved or denied within 45 days (assuming there are no pending issues without response), the installation is DEEMED APPROVED. Have the time limits in the rules.

Code compliance. Civil Code Section 714(c) allows HOA rules to require compliance with health and safety and electrical codes.

Roof repair. The HOA may require the plaintiff to pay for damage to roof components resulting from the installation and continued use of the system, pursuant to Civil Code Section 714.1(a). This may also include the additional cost of removing the system when the roof needs to be serviced or replaced.

Common roofs. If the installation is in a condominium, in which the roof is normally a common space held in common by all the owners, article 4746 of the Civil Code allows applicants to be required to submit a plan of “study of solar site” and to inform other owners of the same building. . The solar site survey plan will be fairly straightforward if the system is only to be installed on a rooftop or carport serving a single residence, but a multi-story apartment-style condominium building will require a more sophisticated plan showing that the applicant is only proposing to use their fair share of the usable space on the common shared roof.

Recordable Agreement. HOAs under Civil Code Section 4746(b) may require subsequent owners of the applicant’s unit to be notified of ongoing obligations with respect to the system installed on the roof of a common area. This is normally accomplished by a written agreement setting out the terms required which is filed with the county registrar/recorder (“registered”) on the unit in question. This will also automatically notify subsequent unit owners that they are bound by the agreement.

Insurance. If the system is to be installed on the roof of a common area, the HOA may require proof of insurance (Civil Code Section 4746(a)(2), which is updated annually to the HOA.

Lease. Some companies offer to install solar systems under a lease. Installing a rented system on roofs of common areas can create huge problems for the HOA and subsequent unit owners. The leasing company is not subject to the statutes because it is not a member. After installing its system, leasing companies often sell the lease to finance companies. If the unit sells, the leasing company must consent to the new tenant. The seller could be responsible for the cost of the lease if the buyer does not assume this responsibility. Nothing in the applicable laws requires that the systems rented by the HOA permit be installed on the roofs of common areas. Potential problems for the HOA and future owners can be avoided by not allowing rental equipment to be installed on roofs of common areas.

Solar power generation is the present, not the future. Prepare with reasonable written policies.

Kelly G. Richardson, Esq. is a member of the College of Community Association Lawyers and a partner at Richardson Ober DeNichilo LLP, a California law firm known for its advice to community associations. Submit your questions to [email protected]. Past columns on www.HOAHomefront.com.