Solar Energy Collection Systems in Maryland, D.C., and Virginia
The use of solar energy is on the rise, and with residential solar energy collection systems becoming more affordable and accessible, we are likely to continue seeing a substantial increase in the installation of residential systems over the coming years. If a property owner in your community has installed a solar collection system on their property, it is often quite noticeable. Most residential solar energy collection systems are made of large panels sprawled across the roof or exterior walls of a property. Although energy efficient and environmentally beneficial, it is a common complaint by members in the community that these systems are a visual blight and disrupt the aesthetic plan of the community. How should an Association handle these complaints? Can the Association do anything to prohibit or regulate the installation and use of solar energy collection systems? The following provides a brief description of the laws in Maryland, D.C., and Virginia concerning a community association’s ability to prohibit or regulate the installation and use of residential solar energy collection systems in the community.
In Maryland, a restriction on land use, which includes a covenant, restriction, or condition in a Declaration, Bylaws, or rules of a condominium or homeowners association, may not impose or act to impose unreasonable limitations on the installation of a solar collection system on the roof or exterior walls of an improvement on the property, which improvement is exclusively owned by the property owner. Md. Code Ann., Real Prop. § 2-119(b)(1). An unreasonable restriction is one that would significantly increase the cost of the system or significantly decrease the efficiency of the system. Md. Code Ann. § 2-119(b)(2). The statue, however, does not prohibit restrictions on the installation of solar collection systems on other parts of a property (e.g., yard, balcony floor, decks, fences, etc.). A community association may be able to restrict the installation of solar energy collection systems if they are installed in a place other than the roof or exterior walls of an improvement on the property.
In July 2018, Solar Expansion for Cooperative Associations Act of 2018 (the “Act”) was enacted in the District of Columbia. Pursuant to the Act, a homeowners association, condominium owners association, or cooperative housing association cannot prohibit a property owner from installing or using a solar energy collection device on the owner’s property. See
D.C. Law 22-142. However, a community association can (i) prohibit the installation of solar energy collection devices on the common elements, other than a roof that only covers one owner’s property or unit, and (ii) establish reasonable guidelines for the installation and use of such devices for the sole purpose of preventing nuisances to other property owners in the community. Any guidelines established by the Association cannot be for the purpose of aesthetics. These guidelines can, however, provide that an owner be responsible for maintenance and repair of the solar energy collection device, as well as any damages caused by the installation or use of the device.
In Virginia, an Association cannot prohibit the installation of a solar energy collection system on a property owner’s property unless the recorded Declaration establishes such a prohibition. Va. Code § 67-701. Any such prohibition in another instrument, such as rules, regulations, bylaws, or policies is unenforceable. According to the Office of the Attorney General, a prohibition by any means other than a recorded declaration, prior to the adoption of Va. Code § 67-701, is not grandfathered in. Any prohibition not included in the recorded declaration, regardless of when it was established by the Association, is unenforceable. In a well-established community, it is unlikely that the recorded Declaration includes a prohibition on the installation of solar energy collection systems. Therefore, if the community association desires to have a blanket prohibition of solar energy collection systems in the community, the association’s Declaration needs to be amended in accordance with both the association’s governing documents and the Property Owners’ Association Act or the Condominium Act.
Short of amending the Declaration, the Association is permitted to establish reasonable restrictions on the size, location, and placement of such solar energy collection systems on a property designated for individual ownership and use. Va. Code. § 67-701(A). Additionally, an Association may also prohibit or restrict the installation of solar energy collection systems on the common elements. Va. Code § 67-701(B). Any restriction or prohibition on the installation or use of a solar energy collection system must be included in any resale certificate or disclosure packet given to a purchaser of a property in the community. Va. Code § 67-701(A).