Homeowners associations continue to be a hurdle for rooftop solar installations:

2020 law boosted solar in some communities, left others behind

November 11, 2021 12:02 am

Rooftop solar panels. (VCU Capital News Service)

By Matt Gooch and Chris Meyer

Many Virginians are aware of the transformational energy legislation enacted in 2020 by the General Assembly, most prominently the sweeping Virginia Clean Economy Act. But a lesser-known bill significantly expanded the rights of homeowners living in homeowners associations (HOAs) who wish to install and use rooftop solar arrays.

This pro-solar bill, 2020 SB 504, limited the ability of HOAs to reject homeowner applications to install solar panels.  For many homeowners living in HOAs, the bill provided a lifeline to achieve carbon neutrality and energy resilience.  

After the bill became effective on July 1, 2020, many homeowners in HOAs were able to install solar, capturing the sun’s energy and turning it into electricity to power their homes.  For these homeowners, the bill has been a great success.  

Nonetheless, LEAP is aware of many HOA residents who remain stranded, unable to capture the benefits of rooftop solar.  The reason is that, while SB 504 limited the situations in which HOAs can restrict solar, it contained one major exception. In particular, the bill allowed HOAs to block solar installations by recording retroactive “declarations” against solar on the official land records for the HOA. For those HOAs that are governed by members – not developers – this exception does not present a problem, given how hard it is to amend recorded covenants.  (Typically, it takes 75 percent of all members to agree to amend a recorded covenant).  

But in a developer-controlled HOA, the developer can, even under the new law, unilaterally amend covenants until all or nearly all lots are sold. And in the wake of the 2020 law, many developer-controlled HOAs have done so, prohibiting or significantly restricting solar for residents. In some cases, developers have gone so far as to record new covenants against solar for the purpose of blocking a homeowner’s pending application to install a new array.  

Additionally, even with the legal certainty provided by SB 504, some member-controlled HOAs have still been resistant to solar.  LEAP has worked with the ReisingerGooch law firm to help numerous homeowners in these situations.  A Tidewater family had to file suit in circuit court in order to vindicate their clear statutory rights to install solar. While the homeowners ultimately prevailed in court, their victory required time and thousands of dollars in legal bills, as well as approximately $5000 in legal fees incurred by their HOA.  

How to turn the corner

Despite recent progress on HOA solar issues, there is still much room for improvement.  One problem is the giant carveout in the law that allows developers to simply revise the covenants, which can bind residents that purchased their homes without any restrictions on solar power.  A second problem is the transaction cost and litigation risk for a homeowner simply asserting their statutory rights to solar.  

The south-facing roof space of HOA residences in Virginia presents a massive opportunity, and the interest in HOA residents in purchasing solar systems increases every day.  As Virginia advances toward 100% renewable energy, new legislation will be needed to encourage private, onsite, resilient generation that rooftop solar provides.  

Simple tweaks to the existing HOA law could ensure that all homeowners have access to the benefits of rooftop solar.  At a minimum, residents that purchased homes without any solar prohibitions should be expressly grandfathered from any later HOA prohibitions.  

But the law should go even further.  The law should also treat solar installations like satellite dishes, thereby removing them from HOA oversight (with reasonable exceptions for design and maintenance).  The federal OTARD rule provides an interesting model in this regard.   Interestingly, Congress did try in 2009 to do with solar panels what it did with satellite dishes, but ultimately failed.  

But other states have enacted this type of legislation.  For instance, the Florida Solar Rights Act prohibits any “covenant, deed, declaration, or similar binding agreement” from prohibiting the installation of solar. Solar rights statutes are in place in such diverse political states as Utah, Arizona, Texas and California.  Another legislative possibility would be to have the Attorney General become involved in these cases on behalf of homeowners.  Some restrictions can and should be applicable, but the existing law covers those topics currently.

Despite recent progress, LEAP has found that many HOAs continue to impose unreasonable burdens on homeowners who want to install solar. The General Assembly should build on the 2020 legislation by amending the Code so that HOAs can longer burden homeowners with anti-solar deeds, covenants, or declarations. By doing so, more Virginians can generate their own clean, cost-effective energy, and in so doing, support the commonwealth’s clean energy and carbon reduction goals.

Chris Meyer is the executive director of the Local Energy Alliance Program and whose Solarize VA program has assisted nearly 700 Virginians install solar on their homes. Matt Gooch is a clean energy attorney with the law firm ReisingerGooch, PLC in Richmond.

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