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Solar Energy Systems: Regulating Owners’ Installation on Shared Multi-family Common Area Roofs

Jillian M. Wright, Esq.
Senior Attorney

Since January 1, 2018, California common interest developments have been required to allow members to install solar energy systems[1] on shared multifamily common area roofs of buildings within which their units are located and on roofs of adjacent carports or garages. (See Civ. Code §§ 714.1, 4600 and 4746). While we do not have an abundance of mid or high-rise common interest developments in the desert, we do see many buildings with shared multifamily common area roofs.

Luckily, the requirement to allow solar energy systems does not mean that associations are prohibited from implementing reasonable requirements to guide solar energy system installation and protect associations from liability. Below, we summarize some of relevant law’s important provisions on this topic, and provide further guidance on how to remain compliant. Associations should work with counsel to develop guidelines that take into consideration the recommendations provided below.

An association shall 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).)

Owners cannot place solar panels or equipment on whatever common area they choose, but rather are limited to the buildings or structures in which they own. 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.

When reviewing a request to install a solar energy system on a multifamily common area roof, 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).)

For practical purposes, we suggest any association with common area roofs include this requirement in its guidelines to notify all owners in the same building. Associations may require the applicant to provide signatures from the notified owners or certified mail receipts showing the notification was sent as part of its application process. That way, if a neighboring owner challenges the owner’s solar installation, the association has proof that the owner complied with the guidelines.

The association must require the applicant and each successive owner of that unit to maintain a homeowner liability coverage policy and provide the certificate of insurance within 14 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 a 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. However, there are unanswered questions with respect to insurance and we recommend you discuss such concerns with association counsel.

When reviewing a request to install a solar energy system on common area, the association may impose a requirement to submit a solar site survey showing the placement of the 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(B).)

This provision means the association can impose guidelines regarding aesthetic standards, so long as the guidelines do not “significantly increase the cost of the system or significantly decrease its efficiency or specific performance…” as described in Civil Code §714. For example, an association can provide that the preferred location of all solar energy systems is one that results in the least visual impact. However, if 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 the submission of a solar survey in its solar guidelines. Alternatively, an association may perform its own solar site survey.

As for the “equitable allocation,” we interpret this provision to mean an association may require the owner to abide by the equitable allocation as called for in the site survey by using only the owner’s share of the rooftop and leaving the remainder available for other owners of units in the building. The phrasing of Civil Code §4746(b)(1) seems to indicate that the requesting owner may choose where the solar energy system is placed, so long as the owner owns a portion of the building on which it will be placed, and complies with other requirements.

The association may 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 an applicant to sign a license, maintenance, and indemnity agreement taking on the above responsibilities, which may then be recorded on title so all prospective buyers are put on constructive notice of the agreement. This agreement should include language which clarifies that the owner may be required to remove the solar energy system, at their cost, to allow for common area maintenance or repair.

The association must still abide by Civil Code §714.

California Civil Code § 714(a) prohibits any declaration and other governing document provision(s) from prohibiting or restricting the installation of solar energy systems outright. 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.[3] Civil Code § 714 also provides penalties for willful noncompliance and attorneys’ fees are recoverable by a prevailing party.[4]

Emily Long, Esq., Epsten, APC. Epsten, APC is a community association law firm that has been providing solutions to Southern California common interest development legal issues since 1986. You can reach Emily at [email protected].

“Associations should work with counsel to develop guidelines that take into consideration these recommendations for solar energy system installation on shared multifamily common area roofs.

[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.

[3]See Civil code § 714(d)(1)(A) and (B) for a further definition of what a “significant increase” or “significant decrease” means under the law.

[4] See Civil Code § 714(f) and (g).

*This article was originally published in CAI Coachella Valley’s HOA Living Magazine in the June 2022 edition and was adapted from the original article, Solar Panels and Solar Energy Systems: The Association’s Ability to Regulate Owners’ Installation on Common Area) as authored by Jillian M. Wright, Esq.

Emily Long, Esq., Epsten, APC. Epsten, APC is a community association law firm that has been providing solutions to Southern California common interest development legal issues since 1986. You can reach Emily at [email protected].

Associations should work with counsel to develop guidelines that take into consideration these recommendations for solar energy system installation on shared multifamily common area roofs.

Use of Association Technology by Members

By Rhonda R. Goldblatt, Esq.

Does your community have a media room?
Does your community offer computers for use by residents?

If so, this article is for you! Stay safe and ensure your community has a record of who is using association technology and how.

Logging into Association-Owned Devices

Some community associations allow residents to access the internet on association-owned devices, such as tablets or computers located in a community clubhouse or business center. However, it is important for such associations to consider implementing safeguards to keep residents accountable for their online activity and restricting accessing to certain websites and content, or in some unusual cases completely restricting access to the internet.

One method of monitoring and restricting access is requiring each resident to log in to association-owned devices using a unique, association-assigned username and password. This will make it easier for the association to track the activity of each resident, if needed. The association may also want to consider blocking specific residents from using its devices at all. For example, certain residents may be barred from accessing the internet as a result of prior criminal activities.

Our firm is not an expert in cybersecurity or information technology (“IT”). Therefore, we recommend consulting with a qualified expert regarding securing an association’s devices, implementing resident log-in requirements, restricting access to undesirable websites, etc. We also recommend consulting with association counsel regarding the type of digital safeguards each community is authorized to implement.

Finally, associations may want to consult with their insurance broker and legal counsel to ensure they’re adequately protected from potential liability in connection with a homeowner’s misuse of an association-owned device.

Here’s to (safely) surfing the Web!

Term Limits are Back in Vogue

By Rhonda R. Goldblatt, Esq.

Everyone has a change of heart sometimes, including, it seems, the California Legislature. By now, most people in the community association field are familiar with Senate Bill 323 (“SB 323”). SB 323 was chaptered into law in October 2019. It significantly amended Civil Code sections 5100, et seq., which govern community association elections. Among other things, SB 323 revised the law to only permit community associations to impose a few, specific qualifications on candidates running for an association’s board of directors. Term limits were not included among them, meaning that associations were effectively prohibited from disqualifying board candidates who had termed out.

That has now changed. The Governor signed Assembly Bill 502 (“AB 502”) into law in October 2021, which took effect on January 1, 2022. This new law added Section 5103 to the Civil Code, which permits elections by acclamation, provided certain requirements have been met. These requirements include:

(d) (1) The association permits all candidates to run if nominated, except for nominees disqualified for running as allowed or required pursuant to subdivisions (b) to (e), inclusive, of Section 5105.
(2) Notwithstanding paragraph (1), an association may disqualify a nominee if the person has served the maximum number of terms or sequential terms allowed by the association.
(3) If an association disqualifies a nominee pursuant to this subdivision, an association in its election rules shall also require a director to comply with the same requirements.

(Emphasis added.)

Section 5103(d)(2) effectively reintroduced the concept of permitting director term limits. Arguably, associations may now impose term limits on director candidates, so long as such term limit is clearly set forth in the association’s Election Rules.

This raises a question as to whether term limits only apply in elections by acclamation. It is curious that the Legislature reintroduced the concept of imposing term limits in the context of elections by acclamation, rather than simply stating that associations may impose this candidate qualification in all elections. Hopefully, the Legislature will clarify this issue with some clean up legislation in the coming years.

Another question is whether term limits in Bylaws are now enforceable again. We believe they likely are, but the association’s Election Rules will need to be amended accordingly.

Please reach out to your community association counsel if you have any questions regarding imposing term limits in your association’s board elections, the enforceability of term limits in Bylaws, or the procedure to amend Election Rules.

Q&A. Please review Anti-SLAPP… What is it? How to use/do it?

A. The acronym SLAPP stands for “Strategic Lawsuit Against Public Participation.” In 1993, the California Legislature enacted Code of Civil Procedure §425.16 after finding a “disturbing increase” in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition. The statute’s express aim is to provide a quick and inexpensive method of “nipping SLAPP litigation in the bud” by disposing of unmeritorious cases at the outset of a case where the litigant has misused the legal system to challenge the valid exercise of another party’s effort to petition a court for redress. In the association context anti-slapp motions are not uncommon. An example of a classic Association-related SLAPP suit (i.e. subject to being dismissed by an Anti-SLAPP motion) arises in the following scenario: An Association sues an Owner over a CC&R violation. In response, the Owner files their own lawsuit claiming damages for the “emotional distress” caused by the Association’s lawsuit. Since the Association has a constitutional right to file a lawsuit (right of petition), the Owner’s lawsuit is subject to an Anti-Slapp motion to strike. Another example can arise in an election context. Here an Owner may publicly criticize a candidate’s qualifications or motives (free speech). If the candidate sues the commenting Owner for libel or slander, the Defendant-Owner can probably file an Anti-Slapp motion. A defendant who believes they have been improperly sued for merely exercising their constitutional rights may file an Anti-SLAPP motion. If the Defendant can demonstrate that the allegations arise from protected activity, the Plaintiff must then submit admissible evidence to the Court that demonstrates a likelihood of prevailing at trial. If the motion is granted, the causes of action (possibly entire lawsuit) must be dismissed, and the court must award the Defendant attorney’s fees and costs. This is a complicated and nusanced area of the law, and should only be litigated by a lawyer experienced in this area of law. – William S. Budd, Esq.

Bugs Bugging Your Association? Don’t Grab That Jug of Bug Spray Until You Read This!

William S. Budd, Esq.

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While associations have historically used licensed pest control operators to perform structural (and occasionally general common area) pest control, it was also common to have staff or maintenance contractors apply pesticides around the association as a routine maintenance item without prior notice to residents. That all changed on January 1, 2017, with the adoption of Assembly Bill (“AB”) 2362, which added a new Civil Code section 4777.

Under this new law, associations intending to have pesticides applied (without using a licensed pest control operator) in common area or a residence must post notice of the impending pesticide treatment and notify adjacent residents at least 48 hours in advance, except in the case of emergency. The law is broadly worded, and would apply to anyone acting on behalf of the association, including employees, contractors, and even volunteers.

The laws differ depending upon whether the pesticides are to be applied by a licensed pest control operator, or by the association or its agents; for example, a maintenance worker or landscape contractor. Note, that since the code applies to “an association,” arguably anyone acting on behalf of the association, including volunteers, are covered.

The following is a summary of the requirements, but you should refer to the full text of Civil Code section 4777, and/or seek advice of legal counsel prior to applying pesticides in the common area or a separate interest.

Licensed Pest Control Operator

A State-licensed “pest control operator” must provide certain information to the association to pass on to its residents. This information generally includes:

The date(s) of the scheduled application of pesticides to the property;
The identity of the pesticide by brand or common chemical name; and
The precautions printed on the pesticide label or included in laws or regulations to protect persons doing the application.

[For more information, see California Code of Regulations section 6618(b).]

Unlicensed Pest Control Operator – New Civil Code Section 4777

Section 4777 generally requires an association to provide notice to its members and residents when pesticides are to be applied to an owner’s separate interest, or to common area, by an unlicensed pest control operator. The notice must generally include information regarding:

The name of the pest(s) to be controlled;
The name and brand of the pesticide product to be used;
The approximate date, time and frequency with which the pesticide will be applied; and
Specified language in the Code disclosing that pesticides are toxic chemicals.

This notice must be provided at least forty-eight (48) hours prior to the pesticide application by posting notice in a conspicuous location within the common area in which the pesticide is to be applied. If a posted notice is not practicable, notice must be provided by individual delivery.

[For more information, see California Civil Code section 4777]

In Summary

An association can still apply pesticides, but must follow formalities of notice. Like other highly regulated activities (e.g., towing) it is always a good idea to take guidance from licensed professionals in the field. Often, when all is considered, it is more cost effective to use the services of licensed insured professionals.