Oregon law vs. CCR's

Started by ShaunM1 • 5 replies • 2623 views

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ShaunM1 (Oregon)
Posts: 1

Posted:

Oregon laws says

SOLAR ENERGY EASEMENTS

105.880 Conveyance prohibiting use of solar energy systems void. (1) No person conveying or contracting to convey fee title to real property shall include in an instrument for such purpose a provision prohibiting the use of solar energy systems by any person on that property.

(2) Any provision executed in violation of subsection (1) of this section after October 3, 1979, is void and unenforceable.

(3) For the purposes of this section, “solar energy system” means any device, structure, mechanism or series of mechanisms which uses solar radiation as a source for heating, cooling or electrical energy. [1979 c.671 §5]

But or CCR's prohibit solars panels

Which prevails?

TimB4 (Tennessee)
Posts: 21,059

Posted:

If there is a conflict between your documents and the law, the law is the controlling document and prevails.

However, you need to read the laws carefully as many defer to the governing documents and only prevail if the documents are silent.

Additionally, in the example you sited, this would not nullify the members requirement to obtain approval prior to installing the solar energy system. This would just indicate that the Approving authority needs to approve it or approve it with some limitations (aesthetics) etc.

For example, even though the law says that the Board may not prohibit the system they could limit the installation of such systems so they are not visible from the road.

If this is the first case for your Association, it may take a long time to resolve.

My Advice:

If your on the Board - check with your attorney or seek out published legal opinions on how the law you cited affects there authority. Then adopt a policy concerning solar energy systems in accordance with the authority you have. The sooner the better.

If your a member wanting a system - submit a request to the Board for prior approval. Cite the new law in your request. It may take awhile for a response as I'm sure that if this is the first case, the Board will be seeking advice.

Hope this helps,

Tim

FredS7 (Arizona)
Posts: 927

Posted:

The state law would govern. However- let's look at exactly what the text says

>No person conveying or contracting to convey fee title to real property shall include in an instrument for such purpose a provision prohibiting the use of solar energy systems by any person on that property

It says if I sell a property I can't prohibit solar energy systems. It DOESN'T say I can't regulate them. There could be limits on size, color, mounting, and maybe even a requirement for insurance or indeminification.

The remainder of the text of the state law might give an indication of what sort of regulation IS allowed.

Also- reading strictly- the text says I can't attach a provision NOW. It doesn't say anything about provisions already attached- say in existing CC&Rs. You might need a lawyer to figure out if previously existing provisions are affected by the state law.

As a general comment- here in AZ we have tile roofs on townhouse-like units that the association maintains. Installing solar panels on a tile roof looks to me...tricky, and a possible cause for leaks, which the association would then be in charge of fixing. Despite the desirability of solar panels, this is problematic. Should the homeowner who installs solar panels be in charge of fixing leaks? Should his neighbors pay the costs if his installation is poor?

It's not simple.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Here's the deal..Your documents are prrobably just old and this technology still new at the time of drafting. Hence why many HOA's ban sattlelite dishes still although they are less visible and better today than 25 years ago. It's no longer practical or practiceable to ban them any more.

It is time to update your CC&R's to reflect new changes and up date. Something that should be done every 5 to 7 years in my opinion. How to do it is all in your docs. This way the rules can reflect the realty of a more current world,.

Former HOA President

EricH8 (Virginia)
Posts: 116

Posted:

If the real property that was conveyed to you does not include exterior walls or the roof, you cannot put solar panels on those surfaces without HOA permission. A condominium for example. It is pretty much the same deal as where you can put a satellite dish. Not on the HOA roof or HOA walls, but maybe you have an area like a porch or yard that is exclusively for your use. If that is a bad location, it is still tough noogies for you if your HOA denies your request for a better location.

HOA property - You paid for it but you don't own it.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Shaun:

I do not know how similar Oregon and Arizona statutes are in regards to solar energy devices, but I found an Arizona Court of Appeals that limits an HOA's power to regulate them. You may find some inspiration.

The opinion is at http://caselaw.findlaw.com/az-court-of-appeals/1320811.html

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