Q: I am looking into getting our home “off the grid” and installing solar energy. The president of our single-family home owners association advised me that the board would not approve solar panels (photovoltaic cells) on our roof if the panels are visible from the street.
My roof faces west, which also faces the front of our property. The HOA rules state that the board must approve any changes to our property and/or home that can be seen from the front.
I am also interested in investing in a battery shed, but the HOA rules also state that all additions to the house must be attached to the main home. I was hoping to have the battery shed away from the home. Please advise, as I would like to proceed immediately.
– C.K., Sarasota
A: Owning a property in a Florida planned community is not like owning a spread in Montana. In fact, it may be practically impossible to totally “go off the grid” where you live, and that should have been a factor when your made your purchase.
That said, the Florida Legislature adopted a statute (Section 163.04, F.S.) that encourages the use of “energy devices based on renewable resources.” The law also prohibits HOAs (and, to a lesser extent, condominiums and cooperatives) from enforcing certain restrictions that have the effect of prohibiting their use, regardless of the authority that the association may have been granted in the governing documents to regulate changes made by owners to their own property.
The preservation of the exterior appearance of structures and other improvements to individual properties is one of the many important functions of an association. “Deed restricted” communities are just that — they subject residents to restrictions that may be more stringent than found in rural areas or even in a traditional single-family residential neighborhood.
Section 163.04 is, however, one of many Florida laws designed to reign in the power of associations to restrict or prohibit certain activities and modifications by residents.
For instance, many older HOA governing documents contain a blanket prohibition of putting up and using clotheslines. (And for good reason. Let’s face it, do you want to see your neighbor Hank’s tighty whities waving in the wind every time you leave your house? )
The law took away the right to absolutely ban clotheslines in HOAs, although an association can still regulate where they can be put so they don’t destroy the aesthetics of the community.
Similarly, an HOA cannot impose a complete ban on the installation of solar panels or “collectors,” as they are called in the statute, even if the board has the authority to regulate changes made to property exteriors. The HOA still, however, can decide where the collectors can be installed on a roof — within an orientation to the south or within 45 degrees east or west of due south, if that decision does not affect how well the solar panels work.
In a condominium or cooperative, an owner can still be banned from installing renewable-energy devices if the installation is made outside the boundaries of the individual unit, such as the common-area roof. And people who live in those types of communities can still get in trouble for the unpardonable sin of hanging beach towels over a balcony or patio railing.
The battery barn
As for the subject of a “battery barn,” I had to look up the definition of one (but then again, Al Gore I am not.) If I understood what you meant, you were referring to a small structure to house batteries used to supply electricity to the main house. I think you are out of luck on that one.
From what I understand of the subject, using a battery barn can be hazardous. Batteries give off a potentially explosive mix of hydrogen and oxygen and are vulnerable to both high and low temperatures. I have certainly dealt with “blowups” in communities, but never like that!
Most likely, your board absolutely could ban battery barns regardless of whether it is attached to your house. Interestingly enough, from what I read, such installations should be made away from the house it will serve.
It seems to me that is because of the fire hazard they may pose. But if you live close to your neighbors, you would be endangering them and their property as well as yourself and your property.
Even setting aside the authority of the association, I seriously doubt you could get a building permit for it, and you would most definitely need one.
The electric car
While we are on the subject of energy conservation and innovation, electric cars and hybrids have become a hot topic for communities around the nation. Newer, “greener” communities are being developed that specifically authorize owners to use charging stations and are even being equipped with common-area stations for more than one owner to use. Other communities don’t want them if they have to pay for them, alter the common property or the electricity to run them is commonly metered.
The future of the issue in Florida might be found in California, which has typically been on the cutting edge for legislation that eventually migrates here.
California recently passed a law that provides that associations cannot unreasonably restrict the rights of owners to install electric-vehicle charging stations on their property or certain common areas. Stations placed on common areas must comply with architectural standards and be installed by a licensed contractor. Electric car owners also must provide liability insurance and pay for the electricity used by a charging station. In addition, associations have the specific authority to install common charging stations.
It remains to be seen if this movement will pick up speed in Florida, although I am aware of residents who have moved rather than get rid of their electric cars, and others who have battled their associations over the use of common-area electricity. As the popularity of these cars increases, so likely will these types of disputes.
I don’t know if Florida will follow California’s lead. It doesn’t always.
For instance, I don’t think any Florida county or municipality has adopted a law on the books similar to the one in Blythe, California. There, it is illegal to wear cowboy boots unless you already own two cows. Then again, Florida voters amended the state constitution to protect pregnant pigs, so who knows?
Tamela Eady is a Florida Bar board-certified real estate attorney with more than 25 years’ experience, concentrating her practice on community association and real estate legal matters. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
