If you are living in a homeowners association you probably know that the Association cannot prohibit the installation of solar panels (or “solar collectors”). But what about a request to install such devices on the roof of a condominium? Section 163.04, Florida Statutes, provides:
A deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement. A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit. Such entity 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.
Older versions of this statute did not include the words, “within the boundaries of a condominium unit”. While you must check your individual condominium documents, generally the roofs of condominiums are common elements and not “within” the boundaries of the unit. Therefore, a condominium unit owner cannot affix solar panels or cut a hole in the roof for a solar collector. This would not be the result in a homeowners association (“HOA”). While an HOA may have architectural restrictions regarding the color, type, and appearance of its roofs, the application for solar panels may not be denied. There is very limited authority pursuant to the foregoing statute to regulate the location of a solar panel. The location may be determined as long as installation is 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.
It should also be noted that in any litigation arising out of an owner’s application for solar collectors, clotheslines or other such energy devices, the prevailing party will be entitled to recover its costs and attorneys’ fees. Therefore, when you receive an application for a renewable energy device you should contact your Association’s legal counsel.