In what may be interpreted as an overreach by California’s state government through legislation (AB 634) enacted in October 2017, community associations in that state (including condos) now have significantly less control over installation of solar systems by owners, including installations on roofs that are part of the “common area” (what we know here in Michigan as general common elements).
This is significant because for the first time, a new law will allow permanent modification and taking of commonly owned elements for an individual owner’s use, which cannot be denied by the board as long as the owner complies with the statutory requirements. And these modifications could seriously impact the rest of the building. This is unprecedented and quite different from past developments that allowed installation of satellite dishes or temporary modifications to accommodate disabilities. We might even expect a lawsuit to arise directly challenging this legislation and seeking to have a court strike it down.
California community association attorneys are rightly concerned about the problems that will likely arise as a result of this legislation once it becomes effective January 1, 2018. (For example, see blog posts here and here.) We agree that this legislation presents a myriad of legal issues, including the questions of how roof space is to be equitably distributed, what happens to roof warranties, as well as a host of problems that can be expected in connection with damage, water intrusion, and insurance.
While we support efforts to take advantage of renewable energy and hope that community associations will find more ways to adopt those technologies, this bill was clearly drafted and approved by people with little experience in community associations who may be overzealous in their pursuit of green solutions.