Massachusetts Voids Deed and HOA Covenants Banning Solar Energy Systems

Section 23C is one sentence and it does its work by nullification rather than by creating a permit process. The operative language voids "Any provision in an instrument relative to the ownership or use of real property which purports to forbid or unreasonably restrict the installation or use of a solar energy system as defined in section one A of chapter forty A or the building of structures that facilitate the collection of solar energy." The phrase instrument relative to the ownership or use of real property is what gives the section its breadth in Massachusetts: a deed, a recorded restrictive covenant, a subdivision declaration, a condominium master deed, a declaration of trust and a lease are all instruments relative to ownership or use. There is no clause conditioning the section on the declaration being silent, and no grandfathering of restrictions recorded before the section took effect, so an older Massachusetts covenant carrying a flat solar ban is void rather than merely unenforceable going forward.

The scope of protected equipment comes from the zoning act. M.G.L. c. 40A, § 1A defines a solar energy system as "a device or structural design feature, a substantial purpose of which is to provide daylight for interior lighting or provide for the collection, storage and distribution of solar energy for space heating or cooling, electricity generating, or water heating." Four things follow for a Massachusetts homeowner. Rooftop photovoltaic panels are covered because they generate electricity. Solar hot water and solar space heating are covered by name. Storage is inside the definition, so battery equipment installed as part of collecting, storing and distributing solar energy falls within it. And a structural design feature whose substantial purpose is daylighting counts, which is why a covenant objecting to a south facing glazing or clerestory scheme is on the same footing as one objecting to panels. Section 23C separately protects "the building of structures that facilitate the collection of solar energy," which is the language that reaches ground mounts, racking and canopies rather than only the panels themselves.

The word doing the limiting is unreasonably. Section 23C voids a provision that forbids installation outright, and voids a provision that unreasonably restricts it, which leaves room for a reasonable restriction in the documents. Massachusetts drew no line for what reasonable means here, and unlike the electric vehicle charger statute at c. 183A, § 10A the legislature attached no definition, no 60 day deemed approval deadline, no written denial requirement and no fee ceiling. An owner facing a slow architectural review committee has a strong argument against a ban and a much weaker one against delay.

Condominiums have a second layer that § 23C does not sweep away. Chapter 183A, § 10(b)(6) gives the organization of unit owners power to require energy saving and emissions reducing measures, then carves solar out: those measures and devices "shall not include solar energy systems, the installation of which shall be governed by section 18." Section 18 is the improvement provision. Where 50 per cent or more but less than 75 per cent of unit owners agree to an improvement to the common areas and facilities, the cost is borne solely by the owners so agreeing. Where 75 per cent or more agree, the cost may be assessed to all unit owners as a common expense, but if the improvement costs more than 10 per cent of the then value of the condominium, a unit owner who did not agree may apply to the Superior Court of the county where the property is located for an order directing the organization to purchase that owner's unit at fair market value as approved by the court, with the purchase cost itself a common expense. Because a Massachusetts condominium roof is normally common area rather than part of a unit, that vote, not § 23C, is usually the real obstacle. Section 23C still matters inside a condominium: it voids a master deed clause that bans solar outright, and it protects an installation within a unit or an exclusive use area.

Two neighbouring provisions round out the picture. On the municipal side, M.G.L. c. 40A, § 3 provides that no zoning ordinance or by-law shall prohibit or unreasonably regulate the installation of solar energy systems or the building of structures that facilitate the collection of solar energy, except where necessary to protect the public health, safety or welfare, so a town cannot do by zoning what a covenant cannot do by deed. On sunlight itself, M.G.L. c. 187, § 1A provides that an easement of direct sunlight may be acquired over the land of another by express grant or covenant, or by a solar access permit under c. 40A, § 9B. Massachusetts gives no automatic right to keep a neighbour's trees or addition from shading your array; that protection has to be bought, granted or permitted.

Section 23C carries no fine, no damages formula and no fee shifting, and names no enforcing agency. Its remedy is that the offending provision simply has no legal force. In practice that plays out in two postures. Defensively, an owner sued by an association or a neighbour to enforce a solar prohibition answers that the restriction is void under c. 184, § 23C, and the enforcement action fails on that ground. Affirmatively, an owner who wants certainty before spending money files for declaratory relief that the specific covenant language is void, and where the dispute is with a condominium, c.

183A, § 10(b)(4) confirms the organization of unit owners may sue and be sued on causes of action arising out of enforcement of the by-laws, administrative rules or master deed restrictions. The fight worth anticipating is over the word unreasonably: an association that abandons an outright ban and instead imposes screening, placement or colour conditions is defending a restriction rather than a prohibition, and § 23C supplies no definition of reasonableness, no approval deadline and no cap on review fees to measure it against. An owner in a condominium should also expect the association to point to c.

183A, § 18 rather than to the master deed, because a common area installation genuinely does require the 50 per cent or 75 per cent owner agreement that section sets out, and § 23C does not displace a statutory voting requirement. A dissenting owner in a project where 75 per cent approve an improvement costing more than 10 per cent of the condominium's then value has his own remedy: application to the Superior Court for an order that the organization buy his unit at court approved fair market value.