Virginia sets example for fair HOA solar policy Other states can look to the commonwealth as a guide, but the law is still not flawless.

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Residential solar contractors encounter plenty of speed bumps in the process from sales to installation, whether that’s tire-kickers, financing issues or logistical delays. Working with a client who lives in a homeowners association (HOA) subdivision could cost installers much more time and money. In the worst-case scenario, it can even lead to cancelled contracts.

Residential solar advocacy group Solar United Neighbors (SUN) works to solve HOA roadblocks to solar installations through grassroots organizing and policy efforts. Ben Delman, communications director for SUN, said the best way to increase solar access for HOA residents is by pushing for laws that clearly define what rights solar homeowners have.

“It’s very much a state-by-state issue,” Delman said. “Many states have laws that protect solar homeowner rights with respect to HOAs. For the ones that don’t, it can be a real barrier.”

According to the Community Associations Institute, 27 states have legislation in place that protects solar access for HOA residents. Delman said the best example of this type of law is Virginia’s HB 414/SB 504, which was signed by Gov. Ralph Northam in March 2020.

Virginia’s bill improved upon prior bills in the state addressing HOAs and solar power. Previous bills stated HOAs could not impose unreasonable restrictions upon homeowners wishing to go solar, but didn’t define what “unreasonable” meant. HB 414/SB 504 clearly defined “unreasonable” as either “increasing the cost of installation of the solar energy collection device by 5% over the projected cost of the initially proposed installation” or “reducing the energy production by the solar energy collection device by 10% below the projected energy production of the initially proposed installation.”

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In order to prove these percentages, the law requires homeowners to “provide documentation prepared by an independent solar panel design specialist that is satisfactory to the community association to show that the restriction is not reasonable according to the criteria established in the bill.”

Documentation is only required if the HOA denies a solar proposal. Virginia-based installation company Ipsun Solar has found a clever way to reduce costs for this additional step in the install process. Ipsun talked to fellow NABCEP-certified solar contractors and agreed to sign off on each other’s documentation.

“I was surprised by how fast we just all called each other, like ‘frenemies,’” said Herve Billiet, CEO of Ipsun Solar. “Our mission is to fight climate change by installing as many solar panels as we can. So if I’m helping one of my competitors in an area of Virginia where we are not installing anytime soon, if he can get more solar installed, it accomplishes our mission too.”

Although the bill can create additional paperwork and lengthen the installation timeline, it gives contractors the legal backing to push a project to completion that wouldn’t have been possible before.

Overall, Virginia contractors said they haven’t had too much trouble with HOAs in general.

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“In years being in business, I can count on one hand how many times we’ve had actual big problems where we just give up. Maybe two hands. So it’s not bad compared to the hundreds upon hundreds of all the installations that we’ve done,” Billiet said.

Nova Solar CEO Barklie Estes said his company doesn’t have many issues with HOAs either.

“The new law has helped us in a couple instances. However, there are still instances where HOAs won’t allow solar or certain placement of solar irrespective of the new laws,” Estes said.

Sometimes, even if companies go through the process to prove the restrictions are unreasonable, the HOA still won’t allow it to move forward. If the homeowner wants it enough, they can choose to lawyer up and fight the restrictions in court. But occasionally, because of a unique Virginia constitutional provision, their efforts will still be futile.

Virginia’s constitution says the state legislature cannot, through subsequently enacted legislation, modify existing contracts. The only exception to that provision is federal law, according to Pia Trigiani, partner at real estate law firm MercerTrigiani, who focuses exclusively on community association law in Virginia.

When a housing developer creates an HOA community, they draw up a declaration that becomes part of the chain of title. When a person buys a lot in a community that has a declaration of covenants, conditions and restrictions, they are then subject to those limitations on their rights to use the property. The restrictive covenant is a contract, so if it says homeowners may not install solar, the new pro-solar law does not apply, per Virginia’s constitution.

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“When you buy a property subject to restrictive covenants, you’ve got to read it. If solar panels are something you’re interested in, then don’t buy a home that says, ‘No,’” Trigiani said.

An earlier Virginia statute regarding solar and HOAs makes it easier for potential buyers to know if their property is solar-friendly. That law requires developers to disclose any limitation on solar panels to the buyers.

“We’re not going to tell a developer he can or cannot do anything in his restrictive covenants about solar panels, but by golly, he should be disclosing it,” Trigiani said.

Restrictive covenants are not easily changed and typically require a super-majority of homeowners to do so. A person who really wants solar on their home should avoid any HOAs with anti-solar covenants.

“People have choices. Read the documents. I think a lot of folks don’t, and then they beg for forgiveness. And that’s when it gets ugly,” Trigiani said.

Virginia’s new HOA solar law really applies to HOA design guidelines, which are not contractual. If an HOA without a restrictive covenant against solar denies a homeowner’s project outright or tells them they must install the panels in a certain place on the roof, the homeowner can then go through the documentation process to prove the HOA’s design guidelines are unreasonable because they either increase installation cost by 5% or reduce energy production by 10%.

Although there’s now some recourse in instances, Trigiani urged solar contractors to do their homework ahead of time for customers in HOA neighborhoods.

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“When you’re working with a customer, the first thing you do is ask them to get a copy of the restrictive covenants that apply to their property, and the design guidelines,” she said. “Before they invest a minute of engineering time, they really need to know.”

Nova Solar does not do this upfront research because Estes said it’s not easy to find the rules for most HOAs.

“If a customer signs and we end up being unable to get the required approvals, we will refund their money and release them from the contract,” he said.

Ipsun Solar also usually sells the solar project first and then looks into the HOA requirements later.

“They can take a lot of time, so it doesn’t make much sense for us to do all the work with the HOAs if we don’t have a signed agreement in place,” Billiet said. “Sometimes, people know about their HOAs, they’ve done their research and can tell us during the sale process what their HOA requires.”

When Billiet has reviewed older HOA covenants, he’s found sometimes the “solar generation” they prohibit seems to describe either solar thermal systems or PV installation practices of the past, which are much less discreet than current systems.

Billiet said public perception of solar PV should be improved to ensure anti-solar provisions aren’t included in HOA declarations. He thinks people too often see outdated stock photos of residential solar installations and think they’re still bulky and blue.

“There’s that one picture that irritates me that I keep seeing in all those magazines, it must be like a stock image, of a home with a solar panel really sticking out above the roof,” he said. “So much is wrong on that picture when you look into it. The solar panels don’t even fit onto the eave and things are just wrong, but yet everybody uses that picture.”

If the public is instead exposed to the all-black, flush rooftop installations of today, Billiet thinks HOA acceptance could also evolve. Trigiani agrees.

“One of the primary functions of common-interest communities is regulating the appearance of property, and not just because it’s beautiful, but if it’s well maintained,” Trigiani said. “The solar panel industry’s done a great job of refining their product, and I think it’s only going to get better.”

States that offer the ability to prohibit covenants or restrictions placed upon homeowners preventing the installation of solar powered panels and associated devices, according to the Community Associations Institute:

Arizona California​​​​
Colorado Delaware
Washington, D.C. Florida
​Hawaii​ Idaho
​Illinois​ Indiana
Iowa Louisiana
​​Maine ​​Maryland
​​Massachusetts Nevada
​​New Jersey ​​​​New Mexico
​​​​North Carolina ​​​​​​Oregon
​​​​Texas ​​Utah
​​​​​​Ver​mont ​​Virginia
​​Washington ​​​​​​West Virginia

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