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Subject: Florida - Any successful HOA restrictions on solar panels?
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LoriM15
(Florida)

Posts:50


07/29/2021 12:33 PM  
Florida has a very specific statute regarding the installation of solar panels by homeowners in HOAs. It says the HOA cannot deny completely but has the right to restrict the placement as long as not 45 degrees from south and as long as it doesn't effect the performance of the system.

Short version - solar panel company convinced homeowner that the HOA could not say no to their solar panel system on all four sides of their roof, including the street-facing side which faces north. They signed the contract and took out a $50k promissory note to pay for the system and pulled the permit all before they got architectural approval from HOA.

They submitted their application before installation. Architectural approval group said you can put on back and one side where you already had solar panels installed. Board had checked with attorney before this and he said HOA was within its rights to restrict placement on front of roof.

Homeowner and solar company were sent a copy of the conditional approval. Neither read it. Community manager discovered the installation as it was happening. Brackets for the panels were installed on all sides including front, but they put panels on three sides, not the front after manager stopped them.

Now brackets are still on front and homeowner has appealed ruling twice. We compromised to allow three sides that are existing. Homeowner wants the whole system since they have to pay for it no matter what. We are ready to fine for non-compliance. They hired a lawyer who says we are limiting the performance of the system with just three sides and violating the statute. Solar company wrote a letter saying that in order for them to generate as much electricity as they want they need all four sides.

Our attorney now says he still believes we are within our rights, but there are no test cases and no case law about it in Florida. Board really feels like they don't want to set a precedent to have solar panels on the street sides of houses.

Just wondering if any Florida HOAs have dealt with this before.
MaxB4
(California)

Posts:1601


07/29/2021 12:49 PM  
There could be case law where limiting the effectiveness of the system might not be reasonable. You may not want them because of how they look from the street, but that might not warrant an HOA from denials.
AugustinD


Posts:1920


07/30/2021 1:06 PM  
Posted By LoriM15 on 07/29/2021 12:33 PM
Florida has a very specific statute regarding the installation of solar panels by homeowners in HOAs. It says the HOA cannot deny completely but has the right to restrict the placement as long as not 45 degrees from south and as long as it doesn't effect the performance of the system.
...
Our attorney now says he still believes we are within our rights, but there are no test cases and no case law about it in Florida. Board really feels like they don't want to set a precedent to have solar panels on the street sides of houses.

Just wondering if any Florida HOAs have dealt with this before.
I think this 2006 Florida Fifth District Court of Appeal decision (Sorrentino vs. River Run Condominium Association) helps give one an idea of how one Florida appeals court is interpreting FS 163.04:
https://law.justia.com/cases/florida/fifth-district-court-of-appeal/2006/5d05-836-op.html

Excerpt from FS 163.04:
"Such entity [like a HOA] may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors."

Of course the clause that is troublesome for the HOA is "if such determination does not impair the effective operation of the solar collectors."

"Impair"? "Effective" "Operation"? These are words that are a mouthful for both side's attorneys. You folks could argue for a long time and at great expense about this.

In my opinion the enemies here are:

-- time (spent in litigation; think years for the trial court decision and possible appeals court decision),

-- money (as in the attorneys are going to clean up; all others will lose). Note that the prevailing part gets its attorney fees paid for by the losing party. Why did legislators do this? Because the legislators want HOAs and HOA owners to stay the heck out of court.

-- risk (you never know how a trial court judge would rule)


Options, in my opinion:
-- Have the HOA attorney send a letter prohibting the owners from installing the street-side, north facing panel or else face litigation. Fine as needed. Let the fines accumulate. Place a lien if allowed by Florida statute. When the home is finally sold, condition sale upon removal of the street-side panel and of course, payment of the fines. In short, force the owners to take the HOA to court. If the owners do take the HOA to court, re-group and decide if this is important. Fact: Solar is important.

-- Let the owners have their fourth solar panel, and allow anyone to have a street-side solar panel. Because solar is important.
LetA
(Nevada)

Posts:1466


08/02/2021 7:25 AM  
If your HOA spent the money to send the owner a prohibition letter, you will likely lose in court providing the owner is willing to fight it. You can't fault a homeowner because their house faces a certain direction. Only allowing homes with rear facing majority sun shine is unfair to the rest of the people that have a majority front facing majority sunshine..
Case law does not exist on this issue likely because state ordinances precedes any litigation.

Sounds like the Sunshine State needs to get with the times. This is from the Nevada Legislature Just a few paragraphs.

HOA's can't interfere with the placement of PV.

NRS 278.0208
1. A governing body shall not adopt an ordinance, regulation or plan or take any other action that prohibits or unreasonably restricts or has the effect of prohibiting or unreasonably restricting the owner of real property from using a system for obtaining solar energy on his or her property.

2. Any covenant, restriction or condition contained in a deed, contract or other legal instrument which affects the transfer or sale of, or any other interest in, real property and which prohibits or unreasonably restricts or has the effect of prohibiting or unreasonably restricting the owner of the property from using a system for obtaining solar energy on his or her property is void and unenforceable.

3. For the purposes of this section, the following shall be deemed to be unreasonable restrictions:

(a) The placing of a restriction or requirement on the use of a system for obtaining solar energy which decreases the efficiency or performance of the system by more than 10 percent of the amount that was originally specified for the system, as determined by the Director of the Office of Energy, and which does not allow for the use of an alternative system at a substantially comparable cost and with substantially comparable efficiency and performance.

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