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Going Green! Impact of Energy Saving Devices and Florida HOAs and Condominiums

November 26th, 2013

Posted in Condominium & Homeowner Association Law

Section 163.04 of the Florida Statutes addresses energy devices based on renewable sources.  Of note for community associations is subsection (2), which provides as follows:

“A deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement.  A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit.  Such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors.”

The second sentence of subsection (2) was amended in 2008 from “[a] property owner may not be denied permission to install solar collectors (…) with respect to residential dwellings not exceeding three stories in height to its present language: “[a] property owner may not be denied permission to install solar collectors or other energy devices (…) with respect to residential dwellings and within the boundaries of a condominium unit.”  

This statute appears to solidify the rights of the owner of a single family residence within a homeowner association (HOA) to install energy saving devices, although some architectural oversight is still provided to the HOA.  The statute is less clear as to the ability of residential condominium owners to install energy saving devices such as skylights and solar panels for the benefit of their condominium unit when such devices would be installed outside of the boundaries of the unit.  Subsection (4) of the above-referenced statute provides that “[t]his section shall not apply to patio railings in condominiums, cooperatives, or apartments.”  What is unclear, however, is the right of an owner to install a solar light for the benefit of a unit when such a structure would require the modification of a common element such as the roof.  While a residential condominium would appear to be considered a residential dwelling (which is not a defined term in the statute), the inclusion of the provision allowing devices within the boundaries of  a condominium may be aimed at limiting the application as to condominium units to only be required to allow within unit boundaries.  Alternatively, an argument can be made that as a condominium is a residential dwelling the new inclusion in the statute serves to broaden the application by also requiring that such devices be allowed within the boundaries of a unit as well, and which would further expand the statute’s application to commercial condominiums.

There have been no appellate decisions rendered since the amendment of Fla. Stat. § 163.04 in 2008.  Accordingly, a condominium association is encouraged to seek legal counsel when asked to evaluate the request of an owner of a condominium unit to install an energy saving device outside of the boundaries of a condominium unit.  Homeowner associations are likewise encouraged to seek counsel when provided with a request to approve an energy saving device given the strict language in the above governing statute.

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