California Solar Panels revisited

Okay, another angle for the solar panel discussion.

Our HOA has begun to allow solar panels. We are townhouse style, so each roof only applies to one home. Neither our CC&Rs nor our R&Rs directly address solar panels, but they do refer to lightly to satellite dishes and antennae, more so to skylights. Essentially the R&Rs say that failure of any structure the skylight or other modification is the responsibility of the homeowner and subsequent owners.

Because the R&R does say "any and all structures" I would like to think this is a place where we can "add to" or "clarify" the documents and include solar panels and the responsibility for maintenance, damage, etc., etc., for as long as the panels are on the building, regardless of the change in ownership. I have a nice solar policy drawn up already which includes as a final paragraph the following:

**The Association requires the homeowner provide for the maintenance, repair, or replacement of roofs or other building components that could be affected by the installation and use of the system. The owner of the solar energy system shall indemnify or reimburse the HOA and/or its members for loss or damage caused by the installation, maintenance or use of the solar energy system.**

Meanwhile we have an ex-board member who is requesting that we ask for a legal document, an easement for the roof, that is filed with the city so that it will be recorded. I thought easements were only for access, entrance, exit, really for the ground, never for the roof. (Yes, I understand there is a right to the sun - a solar easement - but this is not a document recorded with the city.

Ever heard of this? Am I off base thinking an "easement" does not apply?

Thanks

HOA insures the roofs. Walls out. Homeowner is to carry insurance which covers the skylights and damage which they may cause in the unlikely event they are blown off the roof.

CC&Rs and R&Rs says that any homeowner modifications are the responsibility of the homeowner. Example is in the case of skylights ~ if a leak occurs and it is determined it is due to the skylight then it is the responsibility of the homeowner ~ if it is determined to be due to the integrity of the roof then it is the HOA.

Turns out the real concern is the next owner. Is an easement filed with the city required so the homeowner responsibility carries over to the next owner? First I don't think an easement is the correct wording. Second, isn't it understood by CC&Rs and R&Rs that modifications are homeowner responsibility even if there is a subsequent owner.

Pat

In many associations, the association is responsible for the roofs and access/changes to the roofs are basically forbidden. As your association already allows owners to install skylights it should not be a big leap to allow solar panel installation.

One area of concern might be using multi companies to install thus it could end up looking like a hodge podge.

Argument being made is not that they are challenging the solar installation but rather they want to be sure the next owner knows they are responsible for the panels (and any damage to the roof caused by). He feels the new owner won't know this unless a special easement is recorded with the city. I say that they know (or should know) they are responsible in the same way they are responsible for skylights (not city recorded). CC&Rs, rules and regs do not specifically say solar panels but rather say homeowner additions. Not reading the CC&Rs does not absolve responsibility. This particular homeowner (disgruntled ex-board member) actually wants the panels removed when the unit is sold. I say if we allow skylights then panels fall under the same matrix of responsibility ~ and we do not remove them on sale. After all they may be selling points to the home. Responsibility lies with the *current* owner.

I understand easement is access. He says easement is ownership. Solar panel owner owns more of his home than the next neighbor. I still feel if we don't ask for easement documents for skylights we should not ask for them for solar panels.

Thanks for reading. Thanks for your comments.

An easement is the right to enter and use another's property. An easement does not change ownership.

There are many types of easements: ingress and egress, drainage, wildlife, and utilities are common. I own land that has a "grazing easement" that allows the seller's cattle to eat my grass; it's an open range area but I can terminate his easement by installing a fence.

Regardless of how your HOA gives permission to install anything, including solar panels and skylights, the documents should be recorded to protect all involved. There have been too many threads on this forum where a homeowner insists he was given permission by a previous board many years earlier to modify his property but has lost all the paperwork and the current board claims it is a violation.

We thought if we clarified the CC&Rs to say the homeowner was responsible then that would be good enough. Especially since there are likely to be many more homeowners placing panels on their roofs. (Several have expressed interest bit not moved forward...yet...) Does a well worded (legal) documentation in the CC&Rs or rules and regs offer enough?

In my HOA we have accumulated a lot of specially-approved alterations over the years. Mostly these are bordered planting beds and shrubs, but there are 2 homes with solar panels on their roofs to heat swimming pools. There's also an instance of an owner who wanted some landscape changes to alleviate a drainage issue. In all these cases the board approved the changes as long as the owner agreed to pay the entire cost and assume future responsibility for the changes.

Unfortunately there are no records of when these special requests were approved or the homes which were affected. So new owners move in with no idea that there are things previous owners committed to maintaining.

I would argue that no board has the authority to grant special dispensation in this manner since these approvals are tantamount to creating additional covenants that "run with the land". Then new owners are never notified of these additional responsibilities, and the HOA is then stuck with the maintenance going forward.

"Easement" is the wrong word. "Additional covenant" is the proper term since potential buyers should have a right to know about these things in advance and the only legal way to put them on notice is through a deed restriction. That's how I see it, anyway.

Generally speaking, bankruptcy gets rid of personal debts but not obligations that run with the land. A recorded easement would be an obligation tied to the land independently of the personal finances of the person filing for bankruptcy.

IMO, solar is an emerging area where the legal issues are not fully settled. Reminds me of something in our specs - there's more written in our specs about antennas and dishes than anything else - I guess that's because it was a hot topic many years ago and our HOA dealt with it - But no one has put up an antenna or dish in more than a decade. When it comes to solar, everyone is still finding their way just like we were finding our way on dishes many years ago.

Suggest that you ask your HOA to get a legal opinion from your HOA lawyer. Decision shouldn't IMO be based on personal attitudes or biases.