Monday, April 6, 2020

Overcoming HOAs invoking the "nuisance clause"

It's been a number of years since our last post about HOAs trying to prevent YOU from installing solar PV on YOUR property. Texas statutes have been implemented in 2011 (HB-362) and updated in 2015 (SB-1626) to protect homeowners property rights regarding the installation of solar PV systems on your home.

However, in the last year or so, it seems that some HOAs have been increasingly trying to reject homeowner applications to install solar PV systems due to esoteric "nuisance" clause in the Texas Property Code Section 202.010(e).

In this blog post we provide a bit of background on the esoteric clause and a way to help homeowners planning to install solar PV on their homes overcome this potential roadblock.

The Texas Property Code Section 202.010(e) states:
A property owners' association or the association's architectural review committee may not withhold approval for installation of a solar energy device if the provisions of the dedicatory instruments to the extent authorized by Subsection (d) are met or exceeded, unless 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.

With the help of Dan Lepinski, an advisor to the non-profit North Texas Renewable Energy Group, and longtime solar energy industry expert, the operative words in this clause are:

"..unless 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."

... with emphasis on "substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities."


Dan goes on to explain. Recall these facts:

1. PV systems have no moving parts, and thus are silent.
2. PV system don't emit any odors, and per their material safety data sheets, have no toxic substances, even if broken.
3. Any "glare" concerns can be dispelled with some complicated trig and a few hours' work.  

Regardless of these above facts, some recent attempts by HOAs to reject homeowners from installing solar PV systems on their own property have invoked the "nuisance" clause under the pretense they can apply a visual claim that they are "ugly" - hence aesthetics.

But as Dan goes on to explain in this "To Whom It May Concern" letter he provided, the mere fact that a person's use of their land is "abnormal and out of place in its surroundings" will not support a claim alleging a nuisance, as affirmed by the Texas Supreme Court. Dan has found that providing a copy of his "To Whom It May Concern" letter to an HOA using, or planning to use, the "nuisance" clause has been usually sufficient to have the HOA withdrawn the "nuisance" assertion and move forward with approving the installation.

We hope this information helps anyone overcome attempted rejection by their HOA for a solar PV installation based a potential "nuisance" claim.

Much thanks to Dan Lepinski for his efforts and expertise to research this issue and for graciously making his "To Whom It May Concern" letter available folks to use!

Shine On!
Plano Solar Advocates

4 comments:

  1. Just one reason why a person should never buy a house that is subject to an HOA, or if they must, exploit all possible avenues to have said HOA disbanded.

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