Must Associations Allow the Installation of Solar Panels?

Manning & Meyers

Section 202.010(b) of the Texas Property Code  states that  “a property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner from installing a solar energy device.” 

Section 202.010(d) outlines certain exceptions to this rule where an Association may prohibit an owner from installing such a device.  They include:

  1. 1)      A court rules the device threatens public health or safety;
  2. 2)      A court rules the device violates the law;
  3. 3)      The device is located on property owned by the Association;
  4. 4)      The device is located on common property with another member;
  5. 5)      If the installation voids warranties;
  6. 6)      If the device was installed without prior approval of the Association
  7. 7)      The placement of the device constitutes a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.   

The Association may not deny an owner’s right to install panels simply because they are found to be unsightly.

The Solar Panels must be located on one of the following areas:

  1. 1)      The owner’s roof;
  2. 2)      Another structure allowed by the Association under the Dedicatory Instruments; or
  3. 3)      The Fenced yard or patio of the owner below the owner’s fence line;

 

If the owner chooses to mount his panels upon the roof, then the association is allowed to designate the area on which they must be mounted.  If the owner can show that an alternate mounting location on the roof increases the estimated annual energy production by 10% or more.  This estimation must be done by a publicly available modeling tool provided by the National Renewable Energy Laboratory.  The installation must also conform to the slope of the roof, be of a certain color, and have a top edge parallel to the roof line.

An owner may justifies changing the location of his panels citing that his alternative location increases the output by 10% or more.  PVWatts is a publicly available modeling tool provided by the National Renewable Energy Laboratory.

If the Association attempts to deny the owner’s right to install the solar panels by stating that “the placement of the device constitutes a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities,” then the owner may rebut this by obtaining the written approval of all property owners of adjoining property.  Texas law has defined “adjoining” as “touching or contiguous, as distinguished from lying near or adjacent.”  As such, the owner will not be required to go to all of his neighbors in an attempt to obtain the approvals. 

As such, the owner may rebut  a denial by obtaining the approval of his closest neighbors. 

Please note that the above does not require the owner to first obtain the approval of adjoining property owners prior to installation or approval.  The owner is allowed to seek the written approval in an attempt to rebut the Association’s denial due to “unreasonable discomfort or annoyance to persons of ordinary sensibilities.”

Below are example issues that an owner might have in his request:

  1. 1)      The request is not very detailed. For such a large scale project I would expect to see more than a one page sheet with a short description.      
  2. 2)      The request did not include the projected commencement and completion dates as required under Article IV of the Declaration.
  3. 3)      The request states that panels will be installed on the “south side and west side (towards the backside of the house)” yet the attached picture shows panels on both the south, east and west of the house.  I would seek clarification regarding this matter. 
  4. 4)    The request states that frame is “Black/White” when when only “Silver, Bronze or Black” tones are allowed under the law.

 

Should the owner comply with all requirements for ACC submission and under the law, then the Association may not legally preclude him from installing solar panels on his property. 

There is not requirement that the Association assist the owner in any way in his attempt to install solar panels

Pursuant to Article IV of the Declaration, should the owner’s request be denied, the Association is only required to provide written notice of the denial.  The Association may, but is not required to tell the owner why the request has been denied

Should you wish for the owner to not have solar panels, your best bet it to simply deny his modified request for the reasons I stated above, but not explain why Leave it up to the owner to correct his own mistakes. 

Should the owner correct his mistakes, submit a detailed modified request, then your only legal basis for denial will be by stating that “the placement of the device constitutes a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities” and he could easily rebut this statement.      

I have worked with a number of Associations who have found themselves in your same position.  Some have taken a hard line stance while others have capitulated. 

However, the Texas Legislature was quite clear in their passage of TPC 202.010(b), Associations must allow owners to have solar panels.            

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