HB 362 Passed – solar energy devices and roofing materials
The 82nd Texas Legislature enacted HB 362 (here) relating to solar energy devices and roofing materials. The governor has yet to make his decision whether to sign it, veto it or let it become law without his signature. For a listing of the majority of the HOA legislation considered and the status of each bill, go here.
IMPORTANT: This description is NOT intended to be legal advice. You should review the law yourself or have an attorney review it for you before taking any action. The law may have changed, may not apply to your HOA, or a court may have altered the meaning of the words. Before investing a lot of money on a solar device, or risk adverse action by your HOA, you should not merely read what is on any website including this one. Get fully informed.
SOLAR ENERGY DEVICES
The bill prohibits a HOA from including or enforcing a provision in its dedicatory instruments that prohibits or restricts a homeowner from installing a solar energy device (definition here). Tex. Prop. Code 202.010(b) (pending effective date and review of governor).
But there are MANY exceptions. An HOA can prohibit a solar device that:
(1) as adjudicated by a court:
(A) threatens the public health or safety; or
(B) violates a law;
(2) is located on property owned or maintained by the property owners’ association;
(3) is located on property owned in common by the members of the property owners’ association;
(4) is located in an area on the property owner’s property other than:
(A) on the roof of the home or of another structure allowed under a dedicatory instrument; or
(B) in a fenced yard or patio owned and maintained by the property owner;
(5) if mounted on the roof of the home:
(A) extends higher than or beyond the roofline;
(B) is located in an area other than an area designated by the property owners’ association, unless the alternate location increases the estimated annual energy production of the device, as determined by using a publicly available modeling tool provided by the National Renewable Energy Laboratory, by more than 10 percent above the energy production of the device if located in an area designated by the property owners’ association;
(C) does not conform to the slope of the roof and has a top edge that is not parallel to the roofline; or
(D) has a frame, a support bracket, or visible piping or wiring that is not in a silver, bronze, or black tone commonly available in the marketplace;
(6) if located in a fenced yard or patio, is taller than the fence line;
(7) as installed, voids material warranties; or
(8) was installed without prior approval by the property owners’ association or by a committee created in a dedicatory instrument for such purposes that provides decisions within a reasonable period or within a period specified in the dedicatory instrument.
And even if you do fall into one of the many traps above, the HOA can still stop you from having a solar energy device if:
the association or committee, as applicable, determines in writing that placement of the device as proposed by the property owner constitutes a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. For purposes of making a determination under this subsection, the written approval of the proposed placement of the device by all property owners of adjoining property constitutes prima facie evidence that such a condition does not exist.
And of course, as with most of what little homeowners have to protect them from abusive HOA practices, there is an exclusion for builder controlled HOAs still in the developer period. This is a huge loophole because a subdivision can remain in the developer period indefinitely. The definition has no hard ending date so a subdivision can be in the process of development for 10 years or longer whenever the developer decides he is done:
“Development period” means a period stated in a declaration during which a declarant reserves: (A) a right to facilitate the development, construction, and marketing of the subdivision; and (B) a right to direct the size, shape, and composition of the subdivision.
HB 362 also has a small provision regarding roofing materials. It is unclear if this provision will help because there are few definitions of the terms used, but hopefully more HOAs will allow homeowners freedom to select roofing materials of their choice. The text of the provision (subject to the effective date and governor review) is here:
Sec. 202.011. REGULATION OF CERTAIN ROOFING MATERIALS.
A property owners’ association may not include or enforce a provision in a dedicatory instrument that prohibits or restricts a property owner who is otherwise authorized to install shingles on the roof of the owner’s property from installing shingles that:
(1) are designed primarily to:
(A) be wind and hail resistant;
(B) provide heating and cooling efficiencies greater than those provided by customary composite shingles; or
(C) provide solar generation capabilities; and
(2) when installed:
(A) resemble the shingles used or otherwise authorized for use on property in the subdivision;
(B) are more durable than and are of equal or superior quality to the shingles described by Paragraph (A); and
(C) match the aesthetics of the property surrounding the owner’s property.