By Nicholas Marfori, Esq. and David Swedelson, Esq., Community Association Attorneys at SwedelsonGottlieb
As you may have heard, the Governor signed into law new legislation that now changes a California condominium’s associations ability to prohibit an owner from installing a solar energy system on the common area roof. AB 634, which went into effect on January 1, 2018, amended several provisions of the California Civil Code to set forth language that further clarifies what condominium associations can and cannot do with respect to the installation of an owners own solar energy system on a common area roof and exclusive use common.
As originally enacted, Civil Code § 714 and § 714.1 already prohibited associations from imposing unreasonable restrictions against the installation of solar energy systems on common areas and on a separate interest owned by another owner. AB 634 amends Civil Code § 714.1 to further clarify that associations are prohibited from doing the following:
• Establishing an outright ban on the installation or use of energy systems on the common area roofs of the building (including a condominium building) in which the owner resides, or the owner’s adjacent garage/carport (exclusive use common area);
• Requiring membership approval for an owner’s encroachment on a common area roof for the installation of solar energy system equipment.
This new legislation was the idea of a couple who reside in a seniors-only condo association in Northern California. They wanted to install a solar energy system on the common area roof and got the OK from their association so long as they got the approval of 67% of the rest of the owners pursuant to Civil Code § 4600 that prohibits the association from granting exclusive use of any portion of the common area to one owner without that approval. All they wanted to do was eliminate that requirement. What they originally wanted morphed into so much more.
AB 634 adds Civil Code § 4746 which sets forth certain requirements and guidelines for associations reviewing an application for installation of solar energy systems on common area roofs.
Under Civil Code § 4746(a), the Association MUST require the following:
• The applicant is to notify each owner in the building of the proposed solar energy system installation.
• Owners/successive owners shall carry an additional insured policy for homeowner liability coverage naming the HOA, and must provide the HOA with proof of insurance within 14 days of approval and annually thereafter.
Under Civil Code § 4746(b), the Association MAY impose reasonable provisions that:
• Require owners to provide a survey of “usable solar roof area” prepared by a licensed contractor/knowledgeable salesperson;
• Require the survey to include an equitable allocation of usable solar roof area for all owners sharing the roof/garage/carport. This may be difficult (if not impossible) to do in a typical apartment style condominium building as there will likely not be enough space to provide the required equitable allocation;
• Require owners/successive owners to be responsible for:
• Costs for damage to any common area resulting from the installation/ maintenance/ repair/removal/replacement of solar energy system installation;
• May enter into a maintenance agreement that shall run with property (meaning it is recorded on the unit to bind the current and future owners) for costs related to the maintenance/repair/replacement of solar energy system installation until its removal, and not limited to routine maintenance to the common area roof;
• Restoration of all common area and separate interests after removal;
• Disclosing the solar energy system installation to prospective buyers and all related responsibilities
Civil Code § 4600 now states that solar energy system installations are an exception to the rule requiring approval of 67% of members before the HOA can grant exclusive use of any portion of the common area to a member. Therefore, owners are no longer are required to obtain membership approval of 67%. But they will be required to, among other things, show that an equal allocation of the usable roof area is possible.
SwedelsonGottlieb strongly encourages condominium associations to reach out to legal counsel to adopt guidelines and procedures for the installation of solar energy system systems.
General Guideline Suggestions:
1) Adopt an application process to install a solar energy system with the requirements.
2) Require maintenance agreement that runs with the property (meaning recorded on that unit binding the current owner and all future owners) that requires the owner to maintain and repair the solar energy system.
3) Require annual inspection of system safety and routine maintenance.
4) Require owner to have system removed at their expense for proper maintenance of association roofing system.
5) Require the unit owner to be responsible for roof leaks related to the solar energy system or installations
6) Require a construction deposit for damages to common area.
The full text of the added/amended statutes under AB 634 can be found by clicking here