June 15, 2010
CONDOMINIUM RESTRICTIONS ON ENERGY EQUIPMENT
By: Kevin E. McCarthy, Principal Analyst
You asked whether other states have passed laws dealing with the installation of energy efficiency or renewable energy equipment that supersede restrictions imposed by condominium associations. OLR report 2009-R-0391 discusses legislative options to promote energy efficiency in condominium developments.
We have found three states (California, Colorado, and Hawaii) that have adopted laws that limit the extent to which a condominium or homeowners' associations can restrict the installation of energy equipment. California and Hawaii's laws only apply to solar energy systems. Colorado's law is broader and applies to energy efficiency and renewable energy equipment.
In addition, while not directly related to your question, at least seven states (Colorado, Florida, Hawaii, Maine, Maryland, Utah, and Vermont) have passed “right to dry” laws. These laws generally allow the owner of a condominium or single-family home to install clotheslines on his or her own property as an energy-saving measure, notwithstanding restrictions imposed by condominium or homeowners' associations. Typically these laws allow the association to impose reasonable restrictions on where the clotheslines are placed to protect aesthetic values or to protect persons or property in case of a fire or other emergency.
Under Cal. Civ. Code § 714 any restriction imposed by a condominium association that effectively prohibits or restricts installation or use of solar energy system is void and unenforceable.
Col. Rev. Stat. § 38-33.3-106.7 bars condominium and other common interest community associations from prohibiting the installation or use of energy-efficiency measures and renewable energy devices in their communities. The efficiency measures include such things as awnings, garage or attic fans, and evaporative coolers. Renewable energy devices include photovoltaic solar electric panels, solar water heaters, and wind generators. The law supersedes any provision in the declaration, bylaws, or rules and regulations of the common interest community.
The association may impose reasonable aesthetic provisions that govern the dimensions, placement, or external appearance of a measure or device. But, it must consider their impact on the purchase price and operating costs of the measure or device and its performance. The provisions must also be adopted in accordance with the criteria contained in the governing documents of the common interest community.
All of these devices and measures must meet all building code, electrical, and bona fide safety requirements. Wind generators may be required to meet reasonable noise restrictions in residential areas.
Residential property owners do not have the right to erect or install renewable energy devices or energy-efficiency measures on limited or general common elements of a common interest community. This may be particularly important for condominium and town home developments, where residents may not own the exterior of their units.
Hawaii permits owners of townhomes and single family condominiums to install solar energy devices under certain circumstances. These are devices that use solar energy for heating, cooling, or reducing the use of other types of energy dependent upon fossil fuel generation.
If the device is placed on a common element of the housing development as described in the development's declaration, such as a roof, the homeowner must first obtain the consent of the homeowner or condominium association. The association must consent if the homeowner agrees in writing to: (1) comply with the association's design specification for installing the device; (2) hire a licensed contractor to install it; and (3) within 14 days of approval of the solar device, provide a certificate of insurance naming the association as an additional insured on the homeowner's insurance policy.
The device must comply with the condominium or homeowner association's rules and specifications and must be registered with the association within 30 days of its installation. In addition, the initial owner and each successive owner of the unit is responsible for any costs for damages to the device, the common elements, and any adjacent units, that are due to its installation, maintenance, repair, removal, or replacement. Each owner must bear these responsibilities until the device is removed from the common elements. Each owner must maintain an insurance policy covering these obligations and name the association as an additional insured under the policy. Each owner is responsible for removing the device if reasonably necessary or convenient to repair, maintain, or replace the common elements. If a roof warranty exists when the device is installed on a roof that is a common element, the homeowner must obtain confirmation in writing from the company that issued the warranty that installing the device does not void the roof warranty. The homeowner must provide the association with a copy of the confirmation.
Hi. Rev. Stat. § 196-7 additionally requires condominium associations, homeowners associations, and similar entities to adopt rules that provide for the placement of solar energy devices. The rules must facilitate the placement of solar energy devices and not unduly or unreasonably restrict that placement so as to render the device more than 25% less efficient or to increase the cost of the device by more than 15%. No such entity may assess or charge any homeowner any fees for the placement of any solar energy device.