Homeowners Association Solar                         
                    

HOAs and Sustainability Improvements

“The right of individuals to use their own property as they wish remains one of the most fundamental rights that individual property owners possess.”[1]

Texas’ population explosion and climate change[2] have intensified the need for conservation of increasingly-scarce natural resources.[3] Water and power are among the chief needs of any populace, and affordable and reliable supplies of each are becoming rare.

With increasing frequency, Texans are conserving resources by installing solar energy devices and rainwater harvesting systems.  Because they are visible, the components of these systems have an aesthetic impact in the locations where they are installed.

Neighboring landowners sometimes  find sustainability improvements (solar panels and rainwater harvesting tanks) unsightly, or even “ugly.” In some instances, neighbors’ visual preferences are so strong that they perceive their view of sustainability improvements as causing diminished property value.

HOAs and Sustainability Improvements

In deed restricted subdivisions, landowners’ dislike of what they see in their neighbors’ yards can result in enforcement proceedings or even harassment by a homeowners association (HOA).

Across the State of Texas, homeowners seeking to install solar panels and rainwater harvesting devices are facing pushback from HOAs.  Sometimes HOAs refuse to approve owners’ requests to install sustainability improvements.  Other times, HOAs initiate enforcement actions to compel removal or modification of solar panels or rainwater harvesting devices.

HOA actions to prohibit, restrict or remove sustainability-related improvements may violate Chapter 202 of the Texas Property Code.

Texas Law on Restrictive Covenants Related to

Two statues in the Texas Property Code expressly limit the authority of HOAs to enact or enforce provisions in deed restrictions (restrictive covenants) that seek to prohibit or restrict homeowners from installing solar energy devices or rainwater harvesting systems.

Section 202.007 pertains to HOA and rainwater harvesting systems, and it generally provides that a property owners’ association (HOA) may not include or enforce a provision in a dedicatory instrument that, among other things, prohibits or restricts a property owner from installing rain barrels or a rainwater harvesting system.  Notably, the terms “rain barrels” and “rainwater harvesting system” are not defined in the statute.

A similar statute, Section 202.010, was enacted to promote homeowner installation of “solar energy devices.”  The statute defines “solar energy devices” by cross-reference to the definition contained in the Texas Tax Code:

“solar energy device” means a system or series of mechanisms designed primarily to provide heating or cooling or to produce electrical or mechanical power by collecting and transferring solar-generated energy. The term includes a mechanical or chemical device that has the ability to store solar-generated energy for use in heating or cooling or in the production of power.

In relevant part, Section 202.010 prevents property owners’ associations from including or enforcing “a provision in a dedicatory instrument that prohibits or restricts a property owner from installing a solar energy device.”

Both section 202.007 and 202.010 contain narrow exceptions to the general prohibition imposed upon HOAs.  More importantly, both statutes state that any provision in deed restrictions that violate the statutory prohibitions are “void.”

If you believe that an HOA is wrongfully prohibiting or restricting your efforts to install sustainability improvements such as solar panels or rainwater harvesting devices, you should contact my office.

 

 

[1] Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 280 (Tex. 2018) (citing  David A. Johnson, One Step Forward, Two Steps Back: Construction of Restrictive Covenants After the Implementation of Section 202.003 of the Texas Property Code, 32 TEX. TECH L. REV. 355, 358 (2001)).

[2] “Climate change has been described as ‘perhaps one of the most daunting of the global threats currently facing mankind.’” See Robin J. Lunt, Recharging U.S. Energy Policy: Advocating for a National Renewable Portfolio Standard, 25 UCLA J. ENVTL. L. & POL’Y 371, 376 (2007). “With the negative impacts of fossil fuels being increasingly proven, there has been a push to generate energy in a more environmentally friendly manner, primarily through the use of carbon neutral energy sources.” Maria C. Fanconti, How Texas Overcame California as a Renewable State: A Look at the Texas Renewable Energy Success, 14 Vt. J. Envtl. L. 411 (2013)(citing Joshua J. Houser, Supplying the Light at the End of the Tunnel: Using State-Level Experience to Develop Federal-Level Renewable Energy Policy, 19 SE. ENVTL. L.J. 153, 154 (2010)).

[3] It is universally known and undeniable that water is scarce and frequently rationed in San Antonio, where our climatological history chronicles extended droughts interrupted by devastating floods, with barely-tolerable aridness in the interims. The San Antonio City Council is currently considering a Climate Action Plan that focuses on sustainability as a critical component of preserving the City’s quality of life to accommodate the estimated one million additional residents that will arrive by 2040 as San Antonio faces hotter temperatures, longer droughts and more intense rain events.  See generally, https://saclimateready.org/wp-content/uploads/2019/01/SACR-REPORT_FINAL_spreads-1-25.pdf