Looking to Go Green? You May First Need to Check with Your Homeowner’s Association

July 2016

If you live in a subdivision, your property is likely governed by a homeowner's association (HOA) and a written declaration of covenants, conditions, and restrictions regarding the use, condition, and overall appearance and aesthetic of your home ("Declaration"). As the below case illustrates, alterations to your property may be prohibited by or require prior approval under the Declaration, and you may be forced to remove such alterations, at your cost, if you violate such provisions.

The Western District of the Missouri Court of Appeals recently considered an HOA's authority to require a homeowner to remove its newly installed solar panels. In Lake at Twelve Oaks Home Ass'n, Inc. v. Hausman, No. WD 78516, 2016 WL 1579124 (Mo. Ct. App. Apr. 19, 2016), the governing Declaration required homeowners to obtain permission from the HOA's design review committee prior to constructing or altering any structure that materially changed the exterior appearance of their property. The Declaration granted the design review committee broad discretionary review and allowed the committee to disapprove a proposed construction or alteration for "incompatibility with the surrounding properties, a determination that the proposed construction would lower the value of or otherwise damage other properties in the subdivision, or a determination that the proposed construction would be inharmonious with the design standards for the subdivision." In Hausman, the homeowners mounted solar panels on the ground and installed solar panels on the roof of the main residence and the garage without first seeking the committee's approval. When the homeowners refused to remove the solar panels after a demand by the HOA, the HOA brought an action against the homeowners.

The Court held for the HOA and required the homeowners to remove the solar panels. The Court found that restrictions adopted for the purpose of enhancing and protecting the value, desirability, and attractiveness of a subdivision were valid and that a design review committee may in its discretion reject structures that it determines are not consistent or harmonious with the subdivision, so long as such committee acts reasonably and not arbitrarily in exercising such discretion.

Interestingly, after the homeowners had installed the solar panels, the local municipality passed an ordinance prohibiting any Declaration from restricting or limiting solar energy systems to a greater extent than the municipality's regulations. Because the ordinance was to be applied from and after its effective date and not retroactively, the homeowners were unable to take advantage of it.