Two recently amended bills, AB 634 and SB 522, address issues faced by residential property owners who live in common interest developments that seek to install rooftop solar.  Both bills would amend the Solar Rights Act, but for different purposes.  I previously posted about the emerging issue between the Solar Rights Act and Davis-Stirling Common Interest Development Act (DSA) that AB 634 proposes to address. Through a different approach, SB 522 would change the voting requirement for a HOA that mandates association-wide voting for architectural modifications, such as rooftop solar installation.  The difference between these bills is discussed below.

AB 634 addresses the primary issue of transferring common area ownership to a separate interest owner to install solar on a rooftop by amending Civil Code Section 714 and 714.1.  The amendment to Section 714 would add the requirements that the HOA approval process for rooftop solar include that an applicant notify each owner of a unit of the application to install solar in the building in which the installation will be located and that the HOA ensure equal allocation of usable solar space.  The amendment to Section 714.1 would add express prohibitions on an HOA.  First, Section 714.1 would no longer allow an HOA to prohibit the installation or use of a rooftop solar energy system for household purposes on the roof of the building in which the owner resides.  Second, Section 714.1 would prohibit an HOA from requiring approval of the association’s membership, including Civil Code Section 4600, for installation of a solar energy system for household purposes on the roof of the building in which the owner resides.

As described in my previous post, there is a trend in California to use Civil Code Section 4600’s requirement that 67% of separate interest owners affirmatively approve the grant of exclusive use of common area rooftop for an individual rooftop solar energy system.  This rests on the interpretation that Civil Code Section 714.1(a), notwithstanding Section 714, allows a HOA to prohibit the installation of rooftop solar in common areas through reasonable provisions that “restrict the installation…to those systems approved by the association.”  This places in conflict the approval authority held by an HOA and separate property owners seeking to install solar energy systems on the building they live in.  AB 634 seeks to prevent this conflict by outlawing outright prohibitions on solar energy systems on common area rooftops and removing the barrier created by Civil Code Section 4600’s 67% affirmative vote requirement. AB 634 maintains the reasonable provision approval authority of HOAs under Section 714.1 to restrict, but not prohibit, solar energy systems in common areas that fail to meet reasonable architectural review standards, including aesthetics.

SB 522 focuses on approval requirements for architectural modifications to install rooftop solar energy.  SB 522 would amend Civil Code Section 714(e)(2) by adding:

(C) Notwithstanding paragraph (1), if the approval of an architectural modification requires a vote of the membership of the association, then only the percentage of the votes submitted on the architectural modification shall be counted to determine this approval.

Paragraph (1) refers to Civil Code Section 714(e)(1) which states:

Whenever approval is required for the installation or use of a solar energy system, the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property, and shall not be willfully avoided or delayed.

SB 522’s amendment of Section 714 would allow an association-wide membership vote for architectural modification.  This is different than the vote required under Section 4600 to grant a right of exclusive use in a common area.  Generally, architectural review is performed by the HOA’s governing board, architectural committee, or a third party. It is unclear how often architectural review is put to a membership-wide vote given that architectural reviews are required to both follow a fair, reasonable, and expeditious procedure with prompt deadlines per Civil Code Section 4765 and reasonable standards of review contained in the association’s governing documents.  However, SB 522’s legislative finding and declaration states that existing mail approval processes are burdensome and expensive for applicants where unreturned votes are counted as votes in opposition. SB 522 seeks to remove this barrier by basing approval only on the percentage of votes submitted to determine approval.  Whether this stated burden and expense relate to architectural reviews is unclear in light of the uncommon use of member-wide approval for architectural review where reasonable standards of review must be applied to approve or deny a solar energy system application without willful avoidance or delay under Civil Code Section 714(e)(1).