New Cap & Trade Bill Could Have Effect on HOAs   Leave a comment

Flipped version of MIT Solar One House

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If passed, H.R. 2454 will affect many homeowners associations as it is common practice to prohibit solar panels (and other alternative energy devices) by private covenant, at least in Georgia. See below for the specific provisions of H.R. 2454.
The language in the bill is similar to the language in the FCC’s OTARD (Over the Air Reception Devices) Rule regarding satellite dish installation in the same context.
Stay tuned to see how this plays out and how it will affect the architectural approval process in homeowners associations.

American Clean Energy and Security Act of 2009 (Engrossed as Agreed to or Passed by House)




(a) Regulations- Within 180 days after the enactment of this Act, the Secretary of Housing and Urban Development, in consultation with the Secretary of Energy, shall issue regulations–

(1) to prohibit any private covenant, contract provision, lease provision, homeowners’ association rule or bylaw, or similar restriction, that impairs the ability of the owner or lessee of any residential structure designed for occupancy by 1 family to install, construct, maintain, or use a solar energy system on such residential property; and

(2) to require that whenever any such covenant, provision, rule or bylaw, or restriction requires approval 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.

(b) Contents- The regulations required under subsection (a) shall provide that–

(1) such a covenant, provision, rule or bylaw, or restriction impairs the installation, construction, maintenance, or use of a solar energy system if it–

(A) unreasonably delays or prevents installation, maintenance, or use;

(B) unreasonably increases the cost of installation, maintenance, or use; or

(C) precludes use of such a system; and

(2) any fee or cost imposed on the owner or lessee of such a residential structure by such a covenant, provision, rule or bylaw, or restriction shall be considered unreasonable if–

(A) such fee or cost is not reasonable in comparison to the cost of the solar energy system or the value of its use; or

(B) treatment of solar energy systems by the covenant, provision, rule or bylaw, or restriction is not reasonable in comparison with treatment of comparable systems by the same covenant, provision, rule or bylaw, or restriction.

(c) Solar Energy System- For purposes of this section, the term `solar energy system’ means, with respect to a structure, equipment that uses solar energy to generate electricity for, or to heat or cool (or provide hot water for use in), such structure.

By Amy H. Bray, partner in our Commercial Real Estate Department

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You may, as long as you include this complete bio with it:

 Amy H. Bray is a Georgia attorney, focusing her practice in community association and real estate law matters. 

 Her firm, Andersen, Tate & Carr, P.C., works with all manner of clients in business and personal matters, providing “big firm” sophistication with suburban law firm attention and service.



 Copyright © 2009 & 2010, Amy H. Bray & Andersen, Tate & Carr, P.C.


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