Help with the next steps

I am still trying to deal with Solar and my HOA. The solar company has contacted the HOA and property management company providing feedback and making the corrections they are asking for. I am guessing my HOA and property management company did not like the responses mainly #2 and 3 and are now refusing and both are now refusing to talk to us. Below is the feedback and corrections email:

To Whom it May Concern,

I’m writing in response to your information requests regarding the solar installation at for your homeowner. I will copy the list of questions below and respond inline. We look forward to working with you, and I’m thankful for the opportunity to respond to your concerns.

1) Liability Insurance — We have added the HOA to our general liability insurance as "additional
insured.” See attached endorsement.

2) Licensing — ALIVE Industries, Inc. holds a B-1, General Contractors license. This is the most
comprehensive of the licenses offered by the California State License Board, and it covers any
work that involves multiple trades. According to the CSLB, solar may be installed by any B-1
(general), C-10 (electrical), C-46 (solar), or C-39 (roofing) contractor. The challenge with solar is
that there are both structural, electrical, and waterproofing concerns, which aren’t easily addressed
by any one of the specialty trade licenses. Our installers are our own directly-employed, life-long
construction professionals, capable of building the entire structure from the ground up. We know
how to seal a roof, and we have our own electricians on staff. I’m not aware of any C-10 or C-39
contractors with our depth of knowledge of construction or the specific knowledge to install solar,
energy storage, roofing, or solar-specific mounting products. The city requires a C-10 electrician to
sign off on the electrical portion of our plan. Please refer to the CSLB website:
https://www.cslb.ca.gov/Consumers/Solar_Smart/ and more specifically, the guidance under “Other
Things to Remember: "B" – General Building contractors are authorized to install solar energy systems
within the definition of B&P Code section 7057, since a solar energy system constitutes the use of two
unrelated building trades. (Also see attached.)

3) Structural Concerns — while we greatly appreciate the HOA’s concern with the structural
integrity of it’s buildings, and the added load of solar, this is addressed in it’s entirety by the city’s permitting process. Residential solar installation never requires structural engineering or specific calculations because any structure ever built to code in California is/was required to support a load hugely in excess of that contributed by a solar installation. Additionally, solar cannot be walked on, so this very small dead load (under 3 lbs. per square foot) replaces the live load requirement(historically, a minimum of 16 lbs. per square foot, currently, a minimum of 20 lbs. per square foot),see https://up.codes/viewer/california/ca-building-code-2016/chapter/16/structural-design#live_load For a fee, we could get a licensed structural engineer to write a stamped letter to this effect, but since this item is fully addressed by the city’s permitting process, that is unnecessary, and would add significantly to the cost of this small project, adding significant additional and unnecessary financial burden to your resident homeowner.

4) Apartment vs. Condominium (top right corner of first plan page) — This has been corrected.
See attached, updated permitted plan set.

5) On page PV 2.0 of the permit document, there is a misspelling it say WIRE SIZE COLCULATION they want WIRE SIZE CALCULATION — this has been corrected on the attached, revised permitted plan.

6) Wire runs — specific wire run locations will be determined at the time of installation. Wire runs
will be either sheathed romex, in-wall (protected) or in 3/4” EMT conduit on the exterior. Any visible
exterior conduit will be painted to match the building, and every effort will be made to make any
wire runs as invisible or unobtrusive as possible.

7) SDGE disconnect locations and samples — all solar installations in California are required to
comply with Rapid Shutdown requirements, and this installation is no exception. The home’s main
disconnect at the meter will serve as the means of rapid shutdown, and would automatically trigger
the rapid de-energization process, as required by state law. Placards shown on page PV 3.0 will be
installed at the main disconnect location to make emergency services personal aware that the
property is served by a solar PV array. The system may also be de-energized at the main electrical
panel in the unit (in this case, located in the homeowner’s closet). Code requires no additional
disconnects, and since each additional disconnecting means only introduces more potential
problems or potential issues down the line, we choose not to install any more interrupts,
disconnects, or wiring than is required by code.

8) Sticker size and location — the placards and stickers (and their locations) shown on page PV 3.0
of the plan set are actual size when printed on 11x17 tabloid paper, or when magnified at 100% on
a computer monitor. These are printed and produced at the sizes and in the specific formats
required by California Building Code and SDGE’s service standards.

Please let us know if you have any other questions or concerns. We love working with HOAs, and are,
in fact, recommended by many HOAs to their homeowners because of our ability and willingness to
thoroughly address concerns with our installations. We have installed hundreds of solar arrays on
homes and businesses throughout the county, and It is our goal to install the simplest, most elegant,
cost-effective and unobtrusive solar available. We strongly believe that solar shouldn’t be ugly, and
that it should be made available for everyone, and we work hard to ensure that solar is accessible to
businesses, HOA’s and homeowners of all types of homes.

Please feel free to direct any further questions or comments to me directly.

I have contacted legal and three were too busy, one told me do mediation first and if that does not work he told me to contact him to take them to court. The last one wants $5k just to start the mediation process. He is talking a big game saying that it is illegal what the HOA is doing. Don’t install solar yet because it would look bad in court. Let the HOA ignore emails and letters and don’t push them too much because that would look bad as well. He looked at the ARC and said that everything was there even the requested corrections. The solar company wants to get the DA involved.

I don’t want to go to court and extend this past January 2022. That is when NM 3.0 comes active, the non increase in property tax item could expire, by waiting. I know I have until 2023 for the rebate.

My question is how would I go about regarding mediation. Do I have to hire someone to do paperwork? Do I have to go to legal first? How do I request mediation? A certify letter in the mail to the HOA and/or property management company. I am trying to show the HOA that I am serious about this and not backing down but not being threatening at the same time.

They are units that sit side by side. 4 to 6 units per building. Garages are located in the front.

Aug 12th was the date. That $5k for an attorney to write a letter is a hard pill for a $11k system.

You have either a PM, management company or attorney that has gone rogue. It appears you and especially the solar comapny have done everything that has been requested by them.

I would approach the solar company to file a suit against the HOA for interference of business or some nonsense like that. It sounds like the solar comapny has worked with other HOA's, maybe a number of them and have gotten approvals done on behalf of their client by following the guidleines the HOA and their attorney have sent forth. Make an example of that board or attorney. There is no way a judge could turn a blind eye to what's happening and not award you damage and pay the solar company's legal fees.

LetA,

It is $500 an hour starting with the $5 retainer.

For what? I believe the provisions of the California HOA/COA/CIC statute are enforceable only by civil suit. Meaning one hires an attorney; the attorney writes several letters to the Board; if the Board does not cooperate, then one decides with the attorney whether they want to go to court. Which is a one year to several year long nightmare where the main winners will be the attorneys.

The $5000 initial yada fee for this does not surprise me at all. This attorney is going to have to research carefully every aspect to which the HOA is objecting.

I don’t want to go to court and extend this past January 2022. That is when NM 3.0 comes active, the non increase in property tax item could expire, by waiting. I know I have until 2023 for the rebate.

Go to the site davis-stirling.com . In the search engine there, put in first "IDR". This stands for internal dispute resolution. Per statute, HOAs are required to offer IDR (and more) and provide a procedure for same. Also put in the word "mediation".

You need an attorney, no question. It is the price of living in a HOA/COA way too often.

Actually matters can be brought to the Attorney General of California, https://oag.ca.gov/consumers/general/homeowner_assn

This is what Augie ommitted in his continued attack on me,

However, the Office of the Attorney General has limited, discretionary authority to intervene on behalf of homeowners who are denied certain prescribed rights provided by the California Corporations Code. Before making a complaint to our office, please check that the following two conditions are true:

The HOA is set up as a non-profit, mutual benefit corporations (most, but not all, HOAs satisfy this condition); and
Your complaint is about one of the violations listed in the table below:

Those sections are:

Corp. Code, Section 7510(b) Failure to hold a regular meeting of the members.
Corp. Code, Section 7510(e) Failure to hold special meeting after demand by 5 percent or more of members.
Corp. Code, Section 7511 Failure to provide notice of a meeting to members.
Corp. Code, Section 7511(a) Failure to provide timely notice of meeting to members.
Corp. Code, Section 7512 Transacting business not otherwise authorized in the bylaws at a meeting of members with less than a quorum.
Corp. Code, Sections 7513 Failure to provide members with properly conformed written ballot or proxy as authorized in bylaws.
Corp. Code, Sections 7514 Failure to provide members with properly conformed written ballot or proxy as authorized in bylaws.
Corp. Code, Section 7520 Failure of mutual benefit corporation to provide for reasonable means of nominating and electing persons as directors.
Corp. Code, Section 7615 Failure to abide by its bylaws authorizing cumulative voting for directors.
Corp. Code, Section 8215 Falsification of or tampering with association reports or records.
Corp. Code, Section 8320 Failure to keep books and records, minutes of proceedings, or list of members.
Corp. Code, Section 8321 Failure to prepare an annual report.
Corp. Code, Section 8321(a) Failure to provide annual report to member upon written request.
Corp. Code, Section 8330(1) Failure to allow inspection and copying of names and addresses of members upon written request.
Corp. Code, Section 8330(2) Failure to send member list of names and addresses of members upon written request.
Corp. Code, Section 8333 Failure to allow inspection of books and records.
Corp. Code, Section 8334 Failure to allow director to inspect and/or copy books, records, and documents of the corporation.

California HOA's are governed by both Civil Code and Corporation Code.

Tom:

Below is an article from the law firm that wrote your Associations Solar Energy System Rules dated 2018.

On October 15, 2017, California Governor Brown signed Assembly Bill No. 634 into law, which revised Civil Code §§ 714.1 and 4600 and created Civil Code §4746. With AB 634 being signed into law, community interest developments are now required to allow owners to install solar energy systems1 on certain common areas as of January 1, 2018. However, the new law allows associations to impose reasonable requirements to guide solar energy system installation and protect the association from liability. With the increasing prevalence of homeowners wanting to install solar energy systems, associations should be aware of the new law’s implications and how best to craft compliant guidelines and regulations. Below, we summarize the new law’s provisions and how to remain compliant with the new law in a manner that best protects the interests of the association.

1. An association may not establish a general policy prohibiting the installation or use of a rooftop solar energy system for household purposes on the roof of the building in which the owner resides, or a garage or carport adjacent to the building that has been assigned to the owner for exclusive use. (Cal. Civ. Code §714.1(b)(1).)

This means an owner cannot place solar panels or equipment on whatever common area he or she chooses, but rather is limited to the buildings or structures in which he or she owns. Also note, if a carport is adjacent to the building but is not assigned, the association is not required to allow an owner to place solar energy equipment on that carport. Additionally, we note that this provision provides for the “installation or use” of solar energy systems, meaning the owner is not required to own the equipment and may lease it (which is a popular option).

2. The new law prohibits an association from requiring approval by a vote of members owning separate interests in the common interest development to allow this exclusive use of the common area by an owner. (Cal. Civ. Code §714.1(b)(2) and Cal. Civ. Code §4600(3)(J).)

Prior to the new law, an association was required to seek membership approval to grant exclusive use to common area for the installation of solar energy systems, which is a huge undertaking for most associations. With the passage of the new law, this burden is removed.

3. When reviewing a request to install a solar energy system on a multifamily common area roof shared by more than one homeowner, the association must require an applicant to notify each owner of a unit in the building on which the installation will be located of the application. (Cal. Civ. Code §4746(a)(1).)

We suggest any association with common area roofs create solar energy system guidelines and include this requirement to notify all owners in the same building. We recommend those associations require the requesting owner to provide the association with signatures from the notified owners or certified mail receipts showing the notification was sent. That way, if a neighboring owner challenges their neighbor’s solar installation, the association has proof that it complied with this requirement.

4. The association must also require the requesting owner and each successive owner of that unit to maintain a homeowner liability coverage policy and provide the certificate of insurance within fourteen days of approval and annually thereafter. (Cal. Civ. Code §4746(a)(2).)

Unfortunately, the California Legislature did not clarify what an association can or should do if an owner does not comply with this requirement. We believe the Legislature would not force an association to permit the solar energy system to be installed if there is no proof that it is insured, so we think revocation of approval is appropriate in that instance. We also believe the Legislature intended to permit an association to require that a solar energy system be removed if an owner cannot provide proof that it is insured. However, if the system is already installed and the owner does not provide proof of insurance coverage, must the association undertake efforts to see that the solar energy system is removed, even if it means the association will incur significant legal costs? Will the association be liable if it does not follow up annually to ensure that proof is received? Unfortunately, there are no answers to these questions at the moment. If this new law applies to your association, we suggest calendaring a follow up with the applicable owners each year for this request to avoid liability.

5. When reviewing a request to install a solar energy system on common area, the association may impose additional reasonable requirements, including a requirement to submit a solar site survey showing the placement of the solar energy system. If the association requires this solar survey, it must “include a determination of an equitable allocation of the usable solar roof area among all owners sharing the same roof, garage, or carport.”(Cal. Civ. Code §4746(b)(1).)

This means the association can impose guidelines and restrictions regarding aesthetic standards, so long as the restrictions do not “significantly increase the cost of the system or significantly decrease its efficiency or specific performance…” as described in Civil Code §714 (see discussion below). For example, an association can provide that the preferred location for all solar energy systems is one that results in the least visual impact to owners of the association and, if possible, that the system equipment not be visible from street view. However, if in this example, the only feasible location for solar panels to be placed is on a roof which directly faces the street and any other location would significantly decrease the system’s efficiency, the association cannot prohibit an owner from placing the solar panels on the roof that faces the street.

Additionally, this provision provides that an association “may” require that an owner provide a solar site survey showing the usable area of the rooftop and the proposed placement of the solar energy system.2 We recommend every association with common area roofs require this with their solar guidelines. Alternatively, the association, in its sole discretion, may perform its own solar site survey.

As for the “equitable allocation,” we interpret this provision to mean the association may require the owner to then abide by the equitable allocation as called for in the survey by using only the owner’s share of the rooftop so the remainder will be available for other owners of units in the building. This will greatly affect whether owners in mid-rise and high-rise buildings seek out solar energy systems; it may not be cost effective to install a solar energy system if an owner in such a building is required to abide by the equitable allocation determination given so many people are sharing a common roof.

The phrasing of Civil Code §4746(b)(1) seems to indicate that the requesting owner may choose where the solar energy system shall be placed, so long as the owner lives in the building on which it will be placed, has complied with the association’s reasonable regulations (if the association has adopted any), has performed the site survey (if the association requires that), and is not exceeding his or her equitable allocation of the roof. This means, for example, even if there are multiple units within a building, the requesting owner is not required to place the solar energy system directly over his or her unit, but can place the panel anywhere on the building’s roof, the garage, or adjacent, assigned carport.

6. The association may also require the owner and each successive owner to be responsible for costs of any damage to the common area, exclusive use common area or unit; costs for the solar energy system; and disclosures to prospective buyers. (Cal. Civ. Code §4746(b)(2).)

We highly recommend each association require a requesting owner to take on these responsibilities within the solar energy system guidelines and require the owner to sign a license, maintenance, and indemnity agreement stating the same. This agreement can then be recorded on title so all prospective buyers are put on constructive notice of the agreement. This agreement should also include language which clarifies that the owner may be required to remove the solar energy system, at his or her own cost, to allow for common area maintenance or repair and that the owner is responsible to replace the system at his or her own cost.

7. The association must still abide by Civil Code §714.

This new law specifically requires associations to allow owners to place solar panels on common area roofs. However, though AB 634 altered Civil Code §§714.1 and 4600 and created Civil Code §4746, an association is still required to abide by Civil Code §714 as well when crafting its solar energy system guidelines.
California Civil Code section 714(a) prohibits any declaration and other governing document provision(s) from prohibiting or restricting the installation of solar energy systems outright. Civil Code section 714(b) states that it is the public policy of the State of California to promote and encourage the use of solar energy systems. As such, any restrictions on the installation of these systems are declared invalid if the restrictions “significantly” increase the cost of the system or “significantly” decrease the efficiency of the system. A “significant increase” in the cost of a solar domestic water heating system or solar swimming pool heating system that complies with state and federal law is one that increases the cost more than 10% over the cost of the system, but in no case more than $1,000. A “significant increase” in the cost of a photovoltaic system3 that complies with state and federal law is a cost increase of more than $1,000. A “significant decrease” in the efficiency of the system is one that decreases the efficiency by more than 10% over the efficiency of the owner’s originally proposed system. Restrictions on system placement are generally valid if they allow for an “alternative system of comparable cost, efficiency, and energy conservation benefits.”4
The penalty for willful non-compliance with Civil Code section 714 is $1,000, plus the amount of any actual damages suffered by the owner. (Civ. Code § 714(f).) Attorney’s fees are also recoverable by the prevailing party. (Civ. Code § 714(g).)

The statute also mandates that review of an application cannot be “willfully avoided or delayed.” An application is to be reviewed and approved in writing in the same manner as an application for any other architectural application. “If an application is not denied in writing within 45 days from the date of the association’s receipt of the application, the application shall be deemed approved, unless that delay is the result of a reasonable request for additional information.” However, if an association’s governing documents include a shorter response time frame, we suggest the association provide its written decision on a proposed solar energy system application within the time frame stated in the governing documents to avoid any potential risk of the application being “deemed approved” by a court.

In summary, though associations are required to permit owners to install solar energy systems on common area now, it need not be at the association’s expense. An association can adopt reasonable restrictions on the placement and maintenance of the systems and require the owner to take on the liability involved with any damage caused by the system, as described above. We suggest an association consult with its legal counsel to ensure compliance with the new law when creating solar energy system restrictions and guidelines.

1 For purposes of these Guidelines, the term “solar energy system” refers to both solar domestic water heating systems and/or photovoltaic systems, as applicable to an Owner’s request.
2 The cost to perform this survey shall not be deemed as part of the cost of the system as used in Civil Code §714. See discussion below.
3 A “photovoltaic system” is one that generates electricity.
4 California Civil Code section 714(b)