Homeowner Associations in New York to Make Way for Solar Power

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Homeowner Associations (HOAs) are given broad authority in New York State to enforce covenants, conditions, and restrictions in efforts to manage a community of homes. Absent an unlawful purpose or improper internal procedures, HOAs have been largely permitted to develop and manage their properties as they deem fit. This broad authority included an HOA’s ability to prohibit a homeowner from installing a solar power system on his or her property. However, as New York continues to adopt various green initiatives, this is set to change.

On July 21, 2021, the “Solar Rights Act” passed the New York State Senate and was presented to Governor Cuomo. If signed, the legislation will amend New York Real Property Law by adding Article 9-C. The proposed amendment will limit the ability of an HOA to “adopt or enforce any rules or regulations that would effectively prohibit, or impose unreasonable limitations on, the installation or use of a solar power system.” Though not an exhaustive list, the Solar Rights Act enumerates two restrictions that are prima facie unreasonable: 1. Limitations that inhibit the solar power system from functioning at maximum efficiency, and 2. Limitations which increase costs greater than 10% of the total cost of the installation of the solar power system. Critically, the law, if signed, will void, as against public policy, those restrictions which limit a homeowner’s ability to install solar power systems. The law will not restrict an HOAs’ ability to adopt or enforce limitations on installing solar power systems in connection to “property owned by the [HOA] or that is located on property owned in common by the members of the [HOA].”

Despite the clear intent of the legislation to proscribe any rules and regulations limiting a homeowner’s ability to install its own solar power system, the Solar Rights Act nevertheless does envision potential restrictions. Subsection 4 of Article 9-C provides that “any denial of a Homeowner’s installation of a solar power system by a [HOA] must include a detailed description of the exact basis for rejection in writing with specific examples of the [HOA]’s concerns.” Accordingly, it is in the HOA’s interest to create comprehensive policies addressing the maintenance and installation requirements of solar power systems on homeowners’ properties. By adopting a clear policy early, an HOA will be better positioned to guide the development of solar power systems within its community. To strengthen any policy an HOA plans to implement, it should use and reference the Solar Rights Act as a guiding force in developing any potential procedures and requirements relating to solar power systems.