Maryland Solar: HOA Limits Fail the 5 Percent and 10 Percent Test

Section 2-119 is drafted as a limit on private land-use restrictions rather than as an HOA statute, which is why its reach is wider than the Maryland Homeowners Association Act. Subsection (a)(2) defines a restriction on use to include any covenant, restriction, or condition in a deed, a declaration, a contract, the bylaws or rules of a condominium or homeowners association, a security instrument, or any other instrument affecting the transfer or sale of real property or any other interest in real property. That sweeps in a Title 11 condominium regime, a Title 11B homeowners association, a lender's covenant in a security instrument, and a bare subdivision deed restriction in a community with no association at all.

What counts as solar is defined in subsection (a)(3): a solar collector system means a solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating, space cooling, or water heating. Solar water heating and solar space cooling are inside the definition, not just photovoltaic panels. What is missing is any mention of a clothesline, and Maryland handles line drying separately in Real Property § 14-130, so the solar definition should not be stretched to cover it.

The location limit is the first thing a Maryland homeowner should check. Subsection (b)(1) protects installation "on the roof or exterior walls of improvements, provided that the property owner owns or has the right to exclusive use of the roof or exterior walls." A ground-mounted array in a yard is not described, and neither is an installation on a roof the association owns and maintains. A condominium unit owner whose roof is a general common element does not get the benefit of subsection (b)(1) for that roof.

Subsection (b)(2) is the provision that makes Maryland unusual. A restriction on use is unreasonable if application of the restriction to a particular proposal increases the installation cost of the solar collector system by at least 5 percent over the projected cost of the initially proposed installation, or reduces the energy generated by at least 10 percent below the projected generation of the initially proposed installation. The comparison is always against the owner's own initially proposed installation, so the analysis is proposal-specific: a rule requiring panels to be moved from a south-facing front slope to a rear slope may be lawful on one Maryland roof and unlawful on the next.

The evidentiary burden runs against the owner and is unusually formal. Under subsection (b)(3)(i), the owner shall provide documentation that is satisfactory to the community association showing that the restriction is unreasonable under the 5 percent or 10 percent test. Subsection (b)(3)(ii) requires that documentation to be prepared by an independent solar panel design specialist who is either certified by the North American Board of Certified Energy Practitioners or who has attested by affidavit to designing at least 30 solar collector systems in the course of trade within the prior 3 years. A homeowner's own spreadsheet, or a quote from the installing contractor who is not independent, does not meet subsection (b)(3).

Common areas are governed by a separate rule that runs the other way. Subsection (b)(4)(i) allows a community association to prohibit or restrict installation of a solar collector system in the common area or common elements, and (b)(4)(ii) allows it to set reasonable restrictions on the number, size, place, or manner of placement or installation of a system installed there. Subsection (b)(4)(iii) then gives the board an affirmative power: notwithstanding the governing documents, and provided the installation is not otherwise prohibited by applicable law, the board of directors has discretion to install a solar collector system in the common area or common elements. A Maryland board can put solar on the clubhouse without a membership vote.

Maryland also codifies the solar easement, which is the tool for protecting sunlight across a neighbor's land. Under subsection (c), an owner who has installed or intends to install a system may negotiate for a written solar easement, defined in (a)(4) as an interest in land conveyed or assigned in perpetuity that limits the use of land to preserve receipt of sunlight for the owner's system. The instrument must describe the easement's dimensions in measurable terms, including vertical or horizontal angles in degrees or the hours of the day on specified dates when direct sunlight to a specified surface may not be obstructed; state the restrictions on vegetation, structures, and other objects that would impair passage of sunlight; and state the terms for revision or termination. It must be recorded in the land records of the county where the property is located. Nothing in § 2-119 creates such an easement automatically; it has to be negotiated and recorded.

Subsection (d) removes the whole section from historic property that is listed in, or determined by the Director of the Maryland Historical Trust to be eligible for inclusion in, the Maryland Register of Historic Properties. Maryland attached the identical carve-out to its clothesline right at § 14-130(b) and its low-impact landscaping right at § 2-125(d).

Section 2-119 operates by making the offending restriction unenforceable rather than by fining anyone, so the sequence in a Maryland dispute is documentary. The owner submits the proposal, the association applies a restriction, and the owner then commissions the independent specialist's documentation required by subsection (b)(3) showing the 5 percent cost increase or 10 percent generation loss. Because that documentation must be "satisfactory to the community association," a Maryland owner should expect the association to contest its sufficiency, and should keep the initially proposed installation's cost and production estimates on file, since both prongs measure against that baseline.

10 controls the process and forbids any fine, voting suspension, or other infringement until the board serves a written cease-and-desist demand allowing at least 15 days to abate and then a notice of the right to a hearing allowing at least 10 days to request one, with the proposed sanction stated in the notice. 10(c) allows suit for damages or injunctive relief with counsel fees to the prevailing party. In a condominium the parallel procedure is Real Property § 11-113. Real Property § 11B-115(c) additionally places a Title 11B violation within the enforcement duties and powers of the Division of Consumer Protection of the Office of the Attorney General under Title 13 of the Commercial Law Article.