06 Apr Condominium Boards Going Red Over Unit Owners Going Green
Did you know that the earth receives more energy from the sun in one hour than the world uses in an entire year? In the past, such a fact was considered trivial. Today, however, it is fueling (pardon the pun) the Going Green movement that has found prominence in local and national political debates and news productions. The need to decrease our dependence on oil and increase our use of renewable energy resources is highlighted by concerns over global warming, turmoil in oil-producing regions, and the recent memory of paying more than $4 per gallon of gasoline.
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Although polling suggests that the green movement is increasing in popularity and that many are doing what they can to reduce their carbon footprint, those trying to harness the power of the sun in their condominium communities have been encountering significant resistance from their condominium association boards. This is reflected by the increasing number of disputes involving unit owners attempting to install solar energy devices. Given the popularity of going green, those who are perceived as obstacles to the movement are achieving unwanted notoriety.
Ordinarily, condominium boards opposing the installation of solar collectors or other energy devices based on renewable energy resources are enforcing restrictions found in the condominium documents (e.g., bylaws, declarations, etc.) that prohibit such installation. Others are ostensibly protecting the appearance or theme of the condominium community by preventing the installation of unattractive or obtrusive devices, regardless of their benefit. However, notwithstanding motivation, legislative mandates are significantly restricting a condominium board’s ability to prohibit the installation of solar collectors or other renewable energy devices.
In Florida, for example, a deed restriction, covenant, declaration, or similar binding agreement may not prohibit solar collectors or other energy devices based on renewable resources from being installed on buildings. In Arizona, an association cannot prohibit the installation or use of a solar energy device regardless of what the community documents provide. Maryland prohibits unreasonable limitations on the installation of solar collectors.
These laws represent a trend toward the protection of a landowner’s right, including a condominium unit owner’s right, to install solar collectors or other energy saving devices on their property. Their rights, however, are not absolute in that these laws typically allow for some restrictions on the installation of such devices.
Thus, while a Florida unit owner may not be denied permission to install solar collectors or other energy devices within the boundaries of a condominium unit, the board may determine the specific location where solar collectors may be installed on the roof. Similarly, in Arizona, an association may adopt reasonable rules regarding the placement of the solar device.
However, it is important to note that these laws typically provide that any such restrictions cannot impair the effectiveness of the device. In practice, this means that a board may not force a unit owner to place the device in a shady area, have the device face the wrong direction, or paint the device to match the community’s appearance, because these efforts may reduce the device’s effectiveness.
Needless to say, handling a request for permission to install a solar collector, or some other device based on a renewable resource, can be perilous. The stakes are significantly increased by the fact that laws protecting the right to install such devices typically allow the prevailing party to recover attorney’s fees in the event litigation arises.
The likelihood of encountering a request for permission to install a solar collector or some other renewable energy device is increasing with every government rebate and tax credit available for those electing to go green. Since improperly handling such a request can have damaging consequences, a board should seek professional advice before taking any action on the request, regardless of what the condominium documents provide. If a request is illegally denied, the board will be left red in the face while the unit owner goes green.
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