Illinois HOA and Condo Solar Installation Rights (765 ILCS 165)

The prohibition is stated twice and in absolute terms. Section 15 says that notwithstanding any provision of the Act or other provision of law, the adoption of a bylaw or the exercise of any power by the governing entity of a homeowners' association, common interest community association or condominium unit owners' association that prohibits, or has the effect of prohibiting, the installation of a solar energy system is expressly prohibited. Section 20(a) does the same for the recorded documents: no deed restriction, covenant or similar binding agreement running with the land may prohibit or have the effect of prohibiting a solar energy system on a building on a covered lot. Section 20(c) then declares any conflicting declaration provision or energy policy statement void and unenforceable as contrary to public policy. There is no escape clause reading 'unless the declaration provides otherwise', which is what separates a real Illinois solar right from the weaker versions in other states.

What counts as a solar energy system is defined broadly at 765 ILCS 165/10. A solar collector includes an assembly, structure or design used for gathering, concentrating or absorbing direct and indirect solar energy, a mechanism that absorbs solar energy and converts it into electricity, a mechanism or process gathering solar energy through wind or thermal gradients, and a component used to transfer thermal energy. A solar storage mechanism covers piping, transfer mechanisms, containers, heat exchangers and batteries. A solar energy system is the complete assembly of collector or storage, plus its design, materials, maintenance, operation and labor components and any necessary supplemental conventional energy components designed to interface with it. Rooftop photovoltaics, solar thermal water heating and the battery and inverter equipment that goes with them are all inside the definition.

The association keeps one aesthetic lever and it is measured. Section 20(a) lets the approving entity determine the specific configuration of the elements of a system on a given roof face, but it may not prohibit elements of the system from being installed on any roof face, and any such determination may not reduce production by more than 10%. Production is defined in the same subsection as the estimated annual electrical production of the system. A board directing all panels to the rear slope must therefore be able to show the redirected design still yields at least 90% of the estimated annual output. Section 20(a) also forbids requiring a specific technology, naming solar shingles rather than traditional solar panels as the example.

Section 20(b) lists what an association may never write into its energy policy statement. It may not condition approval on approval by adjacent property owners. It may not inquire into a property owner's energy usage. It may not impose conditions impairing the operation of the system, conditions negatively impacting any component industry standard warranty, or post-installation reporting requirements. It may not deny permission based on the system's ownership or financing method, which protects third party ownership, leases and power purchase agreements. What it may do is impose reasonable conditions on maintenance, repair, replacement and ultimate removal of damaged or inoperable systems, so long as those conditions are not more onerous than the association's analogous conditions for nonsolar projects.

The policy statement itself is on a clock. Within 90 days after the association receives a request for a policy statement or an application from a member, it shall adopt a written energy policy statement, and whenever adopted it must include the terms of Section 20 as its minimum standards. Beyond that minimum it may address the location, design and architectural requirements of solar energy systems, and whether a wind energy collection, rain water collection or composting system is allowed. The association must disclose the statement on request and include it in the declaration.

Application handling is governed by 765 ILCS 165/30. The application must be available in hard copy at an owner's request, or through the association's website if it has one, and the association need not use a solar-specific form. It may not charge any fee above what it charges for any other application relating to changes to property. The approving entity must process the application within 30 days of submission, or within 120 days if the owner applied before the association adopted its written energy policy statement. At the owner's request, the association may communicate directly with the owner's solar contractor. An owner whose application was denied earlier may resubmit, and Section 30(d) requires the resubmission to be evaluated under the changes made by Public Act 103-296, effective July 28, 2023.

Approval by the association is not a building permit. Section 25 requires the system to meet applicable standards and requirements imposed by State and local permitting authorities other than the association, so an Illinois owner still needs the municipal or county electrical and building permits, utility interconnection approval and inspection that would apply outside an association.

The remedy for a stalled association is self-help on a defined timetable. Under 765 ILCS 165/30(c), if an association fails to adopt a written solar energy policy statement consistent with the Act, or fails to process an application within the 30-day or 120-day window, the owner may proceed with installation notwithstanding any other policy or provision in the declaration. First the owner must give the association written notice of the alleged failure and 10 business days to cure it. During those 10 business days the association may only adopt the policy statement or process the application; the statute expressly bars it from taking other action, including seeking injunctive relief. The same subsection prohibits the association from imposing fines or otherwise penalizing an owner for exercising rights under the Act, so a violation notice issued over a lawful installation is itself unlawful.

Money damages follow a willful breach. Section 35 provides that any entity other than a public entity that willfully violates the Act is liable to the applicant for actual damages occasioned thereby and for any other consequential damages. For a homeowner that reaches lost electricity production, lost or reduced federal and Illinois Shines incentive value, contractor remobilization charges and the cost of a delayed installation. The same section shields an association that complies: it is not liable to any other resident or third party for that compliance, which removes the excuse that neighbors might sue the board.

Enforcement is judicial, not administrative. Illinois assigns no agency to police association solar decisions, so the owner sues in the circuit court of the county where the property is located for a declaration that the restriction is void under Section 20(c), an injunction, and damages under Section 35.