HOA Lawyer Blog

Addressing Requests for Installation of Solar Panels on Shared Common Area Roofs

Published on: October 5, 2022 | by Steven J. Tinnelly, Esq.

cs_image The rising cost of electricity, environmental considerations, clean energy and tax savings, utility company programs designed to help alleviate the demand on the grid, and the proliferation of affordable residential solar energy systems have made solar power more popular than ever. Consequently, Associations are seeing a sharp rise in homeowner requests to install solar energy systems. This presents a particularly unique set of challenges for condominium developments because of their shared roofs and other similar common area components.

Under Civil Code § 714.1, if a condo owner (“homeowner”) wants to install a solar energy system (“solar panels”) on a shared common area rooftop or adjacent garage or carport, Associations can no longer prohibit them. California law broadly requires Associations to allow homeowners to install solar panels on common area roofs of the buildings in which their unit is located or on the roofs of adjacent carports or garages. See Civ. Code §§ 714.1, 4600, and 4746.

Moreover, solar panel installations are an exception to the rule requiring 67 percent of membership approval before the Association grants use of any portion of a common area to a particular homeowner. See Civ. Code § 4600(b)(3)(J). This Civil Code exception is intended to make solar adoption in condos easier and streamline common area roof installations.

Therefore, any provision of an Association’s governing documents that effectively prohibits or materially impedes the installation or use of solar panels is deemed void and unenforceable. For instance, Association restrictions that raise the total cost of the solar panels system by more than $1,000 or decrease its performance by more than ten (10) percent from what was originally proposed by the applicant homeowner run afoul of the law and are deemed void.

However, this does not mean that a homeowner can install as many solar panels on the common area roof as he or she desires without consideration of neighbors in the building. Civil Code § 4746(b) provides that when reviewing a request to install a solar energy system on a multifamily common area roof shared by more than one homeowner pursuant to §§ 714 and 714.1, an Association may impose additional reasonable provisions.

Therefore, if a homeowner wants to install solar panels onto a common rooftop, the Association can require a solar site survey to help determine the breakdown of usable space among all homeowners sharing the roof for potential solar hardware. See Civ. Code § 4746. Because each Association is different, it is up to the Board of each Association to decide what is a fair and reasonable equitable allocation of a common area roof. If practical, each homeowner should get a proportion of the usable roof space that would result in an equal amount of energy output. This way, rather than the first installer of solar panels utilizing the ideal area(s) of the shared solar roof to the disadvantage of subsequent installers, the above equal allocation approach promotes solar equitable ownership and equal opportunity to the same quantity of solar energy.

If the site survey determines that a rooftop solar system would be impractical or the allocation of shared roof space is untenable, the Association could deny installation. See Civ. Code § 4746.

In summation, while the Association may not unreasonably restrict an owner’s request and the CA statute expressly allows for such panels on common area roofs, the Association may reasonably attach a series of requirements and conditions pursuant to which the applicant homeowner must: 1) Notify the other homeowners with the shared roof of their desired solar system installation; 2) maintain a liability coverage policy at all times and provide the Association with the corresponding certificate of insurance within 14 days of approval of the application; 3) conduct a solar site survey and provide the Association with a copy of the results, which among other things shall also include a determination of the equitable allocation of the usable solar roof area among all owners sharing the same roof, garage, or carport; 4) bind the owner and all successive owners for costs of maintenance and damages with all repair responsibilities being allocated to the homeowner and his/her successor(s); and 5) require the homeowner’s disclosures to all prospective buyers (and renters) of the restrictions and responsibilities.

The above requirements notwithstanding, the Association should get ahead of potential future issues involving solar panel systems by adopting guidelines addressing the policies and procedures regarding the application and installation of solar panels. Additionally, Boards should consider requiring the execution and recordation of a maintenance and indemnity agreement whereby the applicant homeowner assumes responsibility for the costs of repairing damage to, among other things, the common area resulting from the installation, maintenance, repair, removal or replacement of the solar panels and all related hardware. Such an agreement should also address what happens when the System needs to be removed or re-installed to accommodate community-wide roofing projects the Association may undertake in the future.

There are further concerns and other nuances that should be considered for each individual Association to ensure full compliance with the operative laws and effectively mitigate legal exposure.

Contact your HOA attorney to conduct an in-depth analysis for your community to ensure compliance with the legal requirements and help prepare a related Solar Policy and Maintenance & Indemnity Agreement.

-Blog post authored by TLG Attorney, Sam I. Khil, Esq.

New ‘Community Association Update Newsletter’ – Issue 56

Published on: September 28, 2022 | by Steven J. Tinnelly, Esq.

New-Newsletter-Template-300x167 In case you missed it, Issue # 56 of our ‘Community Association Update’ newsletter is available now!

Topics covered in this issue include:

Should an HOA Interfere with Parental Rights? NO!
Retain Your HOA Counsel Throughout Insurance Claim Matters
“Evergreen” Clauses – Avoiding Self-Renewing Contracts
Non-Compete Clauses

A link to the newsletter is here.

Need to be added to our mailing list? Click here to sign up. Links to previous editions of our newsletter can be found here.

New Client: Summerwind Townhomes of Anaheim Association

Published on: September 28, 2022 | by Steven J. Tinnelly, Esq.

Summerwind-300x169 It’s our privilege to welcome Summerwind Townhomes of Anaheim Association to Tinnelly Law Group’s growing family of HOA clients.

Summerwind is a Mediterranean inspired condominium community located within minutes to stores, restaurants, services, and entertainment in the Anaheim East of Harbor region of Anaheim. Residents enjoy a community pool and spa.

Our HOA lawyers and staff look forward to working with Summerwind’s Board and management.

New Client: Pelican Ridge Estates Community Association

Published on: September 21, 2022 | by Steven J. Tinnelly, Esq.

Pelican-Ridge-Estates-300x169 It’s our privilege to welcome Pelican Ridge Estates Community Association to Tinnelly Law Group’s growing family of HOA clients.

Pelican Ridge Estates is located in the Pelican Hill Communities in Newport Coast. With its spectacular views of Newport Beach, Newport Coastline, Catalina Island, City Night Lights, the Pacific Ocean and beautiful sunsets, Pelican Ridge Estates is home to some of the most sought after luxury real estate in Southern California. Residents enjoy a 24-hour guarded gate, clubhouse, pool and tennis courts.

Our HOA lawyers and staff look forward to working with Pelican Ridge Estates’ Board and management.

Navigating DFEH Investigations And Complaints

Published on: September 14, 2022 | by Vivian Tran, Esq.

download Homeowner and tenant complaints filed with California’s Department of Fair Employment and Housing (“DFEH”) are on the rise and are increasingly lodged against Associations, Boards, and management companies. The complaints are generally directly filed with the DFEH on a variety of grounds, but occasionally involve certain fair housing claims that are referred to the department by the U.S. Department of Housing and Urban Development (“HUD”).

The DFEH is responsible for enforcing state fair housing laws that make it illegal to discriminate on the basis of categories like sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. The department’s broad enforcement authority applies to housing providers including common interest developments, landlords, and property management companies.

A typical DFEH complaint process commences with DFEH complaint including service of a short statement of allegations from the homeowner or tenant. This usually signals the beginning of a rigorous inquiry and investigation for the Association, its Board, and the management company, all of whom may be initially identified as actual or potential respondents.

While the DFEH in theory is supposed to be neutral in its investigations, the investigators working for the department often tend to be sympathetic to the complainant(s) by virtue of the tenets of the department and may therefore adopt the role of an advocate when serving severe demands and questionnaires on the respondent(s).

Moreover, it is important to note that the initial complaint filing with the DFEH does not mean that the DFEH has already determined whether there is reasonable cause to believe any laws have been violated or that the DFEH will in fact prosecute a legal action against the named respondent(s). Rather, it means that the DFEH has preliminarily determined that the received complaint, the allegations, and the named parties fall within the investigative purview of the department and are subject to the laws that the DFEH is tasked to enforce.

Nonetheless, because this process tends to be quite involved with numerous nuanced considerations and legal implications for the Association, its Board, management, and the Association’s insurance carrier, Boards should immediately engage the Association’s legal counsel at the very outset to help it navigate the DFEH’s demanding process and help formulate a comprehensive legal strategy.

The above notwithstanding, as an alternative to the department’s active investigation, the DFEH also has a mediation program, whereby it attempts to resolve complaints through free internal dispute resolution services. If the parties mutually agree to mediate, then the complaint response and the active investigation is stayed pending the outcome of the DFEH mediation.

Otherwise, the DFEH investigation continues, and the department will assess the facts and legal issues of the case. These investigations include, among other things, reviewing information and evidence from complainants, respondents, or other sources. When a respondent answers a complaint, the DFEH investigator reviews it with the complainant. Meanwhile, the respondent(s) may contact the assigned investigator to discuss the complaint, request any needed extension of time to respond to the department’s investigative questionnaires, or to address any other concerns.

Thereafter, the DFEH uses the facts obtained through its investigation to determine if there is reasonable cause to believe that a law the department enforces has been violated. If not, the case is closed. If there is reasonable cause, the investigator notifies the parties of this determination, may advise that the department intends to file a lawsuit in court, wherein the department replaces the complainant(s) as the moving party and substitute in as the Plaintiff, and the DFEH’s legal department will then take over the matter for further handling.

However, before the DFEH files a lawsuit, it typically requires the parties to go to mediation. If the case is not settled during this mediation, the DFEH may proceed with filing its lawsuit in court.

Typical settlement remedies at mediation and/or relief sought in DFEH actions include payment of statutory monetary fines and other damages, attorney’s fees and costs, amendment of Association’s CC&Rs and rules, Board and management staff undergoing fair housing training regarding the rights and responsibilities of housing providers, posting of DFEH fair housing posters throughout the community and/or distributing fair housing brochures to all residents, etc.

Based on the above rigorous DFEH process and the range of challenges it presents, it is imperative that the Association’s Board and management stay ahead of the problem by ensuring that their actions and policies are in accordance with the California Unruh Civil Rights Act, the Federal Fair Housing Act, and that they do not inadvertently run contrary to state and federal laws that prohibit discrimination based on the above cited categories.

Moreover, the Association’s legal counsel should be engaged at the very outset of any DFEH complaint process so it may duly protect the Association’s interests and help the Board navigate the above-outlined demanding process.

-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.

New Client: 4S Ranch Master Association

Published on: September 7, 2022 | by Steven J. Tinnelly, Esq.

4S-Ranch-300x169 It’s our privilege to welcome 4S Ranch Master Association to Tinnelly Law Group’s growing family of HOA clients.

Nestled in the scenic hills just north of San Diego, the 1700-acre, master-planned community of 4S Ranch includes more than 3,700 homes (4,015 at build-out). Set on the original 3,600 acres purchased in 1938 by Albert Ralphs, head of the Los Angeles-based grocery store chain, 4S Ranch offers a diversity of natural elements, with more than 10 miles of walking trails, plenty of park land, and 1,600 acres of dedicated open space. Additionally, 4S Ranch boasts a brand new Boys & Girls Club with a $1M Junior Olympic pool and huge indoor gymnasium, available to all families living in the community. 4S Ranch is home to more than 3,500 families, in neighborhoods of spacious condos as well as single-family houses that boast plans of up to 5,300 square feet and expansive lots that permit lush views of the landscaping. With dozens of completed phases, and more homes to come, 4S Ranch attracts a global market and boasts one of the most diverse populations of the coastal regions.

Our HOA lawyers and staff look forward to working with 4S Ranch’s Board and management.

New Client: Niguel Coast Homeowners Association

Published on: August 31, 2022 | by Steven J. Tinnelly, Esq.

Niguel-Coast-300x169 It’s our privilege to welcome Niguel Coast Homeowners Association to Tinnelly Law Group’s growing family of HOA clients.

Niguel Coast homes are located in the coastal community of Laguna Niguel. Residents enjoy a community pool, spa, tennis courts, sport court, and a community park area.

Our HOA lawyers and staff look forward to working with Niguel Coast’s Board and management.

Should an HOA Interfere with Parental Rights? NO!

Published on: August 24, 2022 | by Vivian Tran, Esq.

pexels-kindel-media-7105828 Children are usually considered blessings and a joy to be around. Unfortunately, there is always one slightly rambunctious child who may be prone to causing trouble in Homeowners Associations (“HOAs”). What should an HOA and/or Board of Directors (“Board”) do in such scenarios? Is there anything the HOA can legally do?

The U.S. Supreme Court and federal court recognize parents’ constitutional rights to the care, custody, and control of their children. The Supreme Court explained that the Due Process Clause of the Fourteenth Amendment protects “the right to marry, establish a home, and bring up children.” (Meyer v. Nebraska (1923) 262 U.S. 390.)

While we understand that disturbances to other members and common areas caused by a child might place everyone in a state of discomfort, the HOA should not interfere in situations where parental rights might be in question—especially in situations where there have been no obvious or implied threats to the community members’ health and safety.

Even should management report the incident(s) to the police (on the theory that the child might be a danger to the community) or child protective services (on the theory that the child might be in an unhealthy home environment causing the child to act in such a way), it is unlikely for the government to take any action beyond filing a report at such an early stage. Unless the situation is dire, the government usually prefers to remain out of familial matters. The Second Circuit held “[T]he right of the family to remain together without the coercive interference of the awesome power of the state . . .encompasses the reciprocal rights of both parent and child.” (Duchesne v. Sugarman (1977) 566 F.2d 817, 825.) The Supreme Court held that even after parents are found unfit in a contested court proceeding, they retain constitutionally protected parental rights. (Santosky v. Kramer (1982) 455 U.S. 745.)

HOAs should not assume the powers of the U.S. government and place themselves in a situation of interference with parental rights. Such a scenario could cause unwanted liabilities for HOAs. If the child at question has a disability/special needs, that child and its family would be a protected class under the law. Protected classes may not be discriminated against and, in most cases, may be granted reasonable accommodations from governing document provisions. The parents and child might sue the HOA for discrimination and harassment, especially if the parent of the child has already warned the HOA to refrain from approaching the parent and/or child. Such a lawsuit would not be favorable to any HOAs.

Accordingly, we advise HOAs to proceed with caution and to start with a simple reminder of obligations letter to the Owner of a property within community if the Board believes it would be in the best interests of the HOA to take action (i.e., benefit the health and safety of all HOA members/residents). It might even be better to wait until another incident with the child occurs before sending the reminder of obligations letter.

Of course, should any individual member feel as if their safety is being compromised at any time, we would recommend for the Board to inform that specific member to contact local law enforcement authorities to file an appropriate report. Barring any such scenario, we would advise for HOAs, as entities, to refrain from all involvement pertaining to parental rights unless absolutely necessary.

-Blog post authored by TLG Attorney, Vivian X. Tran, Esq.

New Client: Pelican Hill Community Association

Published on: August 17, 2022 | by Steven J. Tinnelly, Esq.

Pelican-Hill-300x169 It’s our privilege to welcome Pelican Hill Community Association to Tinnelly Law Group’s growing family of HOA clients.

Situated up the hill from the luxury Pelican Hill Resort & Spa is the signature community based off the hotel. The homes feature large Mediterranean style estates that often have stunning Pacific Ocean, Catalina Island, Newport Bay and Golf Course Views.

Our HOA lawyers and staff look forward to working with Pelican Hill’s Board and management.

New Client: Westpark Tiempo Community Association

Published on: August 10, 2022 | by Steven J. Tinnelly, Esq.

Westpark-Tiempo-300x169 It’s our privilege to welcome Westpark Tiempo Community Association to Tinnelly Law Group’s growing family of HOA clients.

Westpark Tiempo is a Spanish inspired condominium community located in the Westpark region of Irvine. Residents enjoy a community pool, spa, tennis court and greenbelt views.

Our HOA lawyers and staff look forward to working with Westpark Tiempo’s Board and management.

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