HOA restrictions on rooftop solar are not the end of the road

As rooftop solar use is expanding across the South and nation, many interested homeowners are finding that their homeowners associations, or HOAs, can be formidable roadblocks.   

Earlier this year, SELC filed a friend-of-the-court brief at the North Carolina Supreme Court, on behalf of the North Carolina Sustainable Energy Association (NCSEA), supporting Raleigh-area homeowners who installed rooftop solar only to find that their HOA opposed it. In this example of exceptional HOA opposition, the homeowners ultimately faced over $50,000 in fines and other legal action after installing solar panels on the front roof of their home. 

The outcome of the case? The North Carolina Supreme Court affirmed the right of the homeowners to go solar under a North Carolina law specifically designed to protect homeowners who want to go solar from HOA opposition. But unfortunately for homeowners, the state of the law on their right to go solar is still a little complicated.  

Attorney Nick Jimenez breaks it down. 

How big of a problem is HOA opposition to solar across North Carolina? 

We looked into this for our friend-of-the-court brief, and the answer is it’s a big problem. Our client for the brief, NCSEA, is a membership-based nonprofit that advocates for clean energy. Some of its members are rooftop solar installers and when we asked them, they reported that HOA opposition is currently the number one obstacle to rooftop solar in the state. Keep in mind that nearly 40% of all North Carolina homeowners are governed by the rules of an HOA.

Why are HOAs doing this? 

It’s hard to say, exactly, and that’s part of what we were getting at with our brief. The reason the HOA boards usually give is aesthetics. Some people just don’t like the look of solar. They will sometimes try to tie that to property values, but that doesn’t really make sense because rooftop solar generally increases the value of a home (studies from the U.S. Department of Energy show potential home value increases of $15,000). North Carolina law even exempts the increase in value from property taxes.   

How does the “Solar Access Law” protect homeowners? 

The NC General Assembly passed a law in 2007 to ensure homeowners can have access to solar by limiting restrictions like we’ve seen from HOAs. It only applies going forward, to HOAs created on or after October 1, 2007. 

The law established the general rule that any restrictive covenant that “would prohibit, or have the effect of prohibiting” rooftop solar is void and unenforceable.  

Are there exceptions in the law? 

Yes. It essentially says restrictive covenants are allowed to prohibit rooftop solar that would be visible from the street or other publicly-accessible areas like a greenway. That isn’t a problem if you want to install rooftop solar on the back of your house. But in the northern hemisphere, solar has to be facing south to make enough electricity to pay off your investment in a reasonable time. So if the south side of your house is the one that faces the street — as it was for the homeowners in the NC Supreme Court case — then you could be out of luck. If an HOA says you can’t install solar facing the street, and that’s facing south, a lot of households may choose not to move forward.   

How does the NC Supreme Court decision affect how the law is implemented in the state?

Well, some HOAs have opted to govern the placement of solar panels on rooftops via their architectural review committees, which can be a fairly arbitrary process. These HOAs may not, in some cases, have a restrictive solar covenant on the books, but elect to use the review committee as a means to deny solar based on roof placement. The recent Supreme Court decision limits the ability of HOAs to do that. An HOA cannot prohibit public-facing solar unless the restrictive covenant says so explicitly. 

It’s important to note that this decision does not mean that any homeowner within an HOA who wants solar can now install it. However, this decision does eliminate one additional barrier to HOA denial and is an important step on the way to potential NC legislation in 2023 that would further open the door to homeowners.

Do you have advice for North Carolina homeowners who want to go solar and have hostile HOAs?

I don’t want to start from the assumption that an HOA is going to be hostile, and I think the first step is always dialogue. Going door to door about an issue can be hard, but it works. I’d recommend homeowners start by talking with their neighbors, finding out who’s on their HOA boards, and where they stand on solar.  

If they do find some opposition, minds can change — especially if folks play up the property value benefits of solar and resilience to storms and outages. Folks could pull together a petition among neighbors, and could potentially convince the community to change its restrictive covenant  —  even adopt something explicitly pro-solar!  

If someone gets to a place where they’re at an impasse with their HOA and it looks like progress isn’t possible then, it might be time to look at the law and see what their options are. (As a public interest nonprofit, that is not something SELC is able to help individual homeowners with. They’d have to consult a private lawyer, ideally one who specializes in real estate.)  

Is there any way to strengthen the Solar Access Law? 

Yes! For a few years running, our friends at NCSEA have backed a bill that would strengthen the law in two important ways. The main thing it would do is to simply delete the exception that allows HOAs to prohibit public-facing solar. It would also clarify the restrictions on location and screening of solar installations that HOAs are allowed to impose. 

The bill will have to be re-filed in the 2023 session at the NC General Assembly but I expect it will be.