New Hampshire Does Not Void HOA Solar Covenants

Start with the section that decides the question inside a condominium. RSA 356-B:30, I (1977, 468:1) lets an owner make improvements or alterations within the unit that do not impair structural integrity or lessen support, but only "except to the extent prohibited by the condominium instruments," and it closes with a flat exterior rule: no unit owner shall do anything which would change the exterior appearance of the unit or of any other portion of the condominium except as the condominium instruments specify. Rooftop or facade-mounted photovoltaic panels change exterior appearance by definition. In most New Hampshire condominiums the roof itself is common area or limited common area under the declaration rather than part of the unit, which puts the decision with the board under RSA 356-B:42, I, the section giving the association power over the common areas except to the extent the condominium instruments prohibit it.

There is no counterweight. New Hampshire has no section voiding a covenant that prohibits or unreasonably limits a solar energy system, no reasonable-restriction test, no approval deadline, and no cost-or-efficiency standard of the kind other states wrote. It also has no general planned-community act, so a detached-home association in New Hampshire is governed by its declaration alone, with no statutory solar override to invoke. RSA 356-B:6-a, I provides that RSA 356-B controls over a conflicting declaration or bylaw, but that only helps where the chapter actually says something, and on solar it says nothing.

What New Hampshire does give a solar owner is a private easement tool, enacted in 1985, 369:3 and effective August 17, 1985. RSA 477:49, II defines a "solar energy collector" broadly as any device or structure used to transform solar energy into thermal, chemical, or electrical energy, and any space or structural components of a building specifically designed to retain heat derived from solar energy, so a passive-solar wall or an air collector counts, not just photovoltaic panels. RSA 477:49, III defines the "solar skyspace" as the space between the collector and the sun that must remain unobstructed for thermally efficient operation, and RSA 477:49, IV adds that a recorded solar skyspace easement "shall be exempt from the frontage and area requirements of local zoning ordinances."

RSA 477:50 sets out how the easement works. It is acquired, transferred and recorded like any other conveyance of an interest in real property and runs with both the benefited and the burdened land. RSA 477:50, II requires the instrument to state the vertical and horizontal angles in degrees measured from the site of the solar energy system, or some other description of the three-dimensional space, or the place and times of day when obstruction is prohibited; the terms of grant and termination; provisions for compensating the benefited landowner for interference or the burdened landowner for maintaining the easement; and legal descriptions of both parcels. RSA 477:50, III fixes a floor of 10 years before the easement may terminate unless earlier termination is expressly stated in the instrument or negotiated between the owners, and allows enforcement by proceedings in equity and by actions at law for damages. Termination otherwise follows the instrument, a court decree based on abandonment or changed conditions, or RSA 477:26. One limit is written in expressly: no planning board may require a landowner to grant an easement.

RSA 477:51 supplies a fill-in-the-blank statutory form, and its Alternative A is the practical standard most New Hampshire grantors use. It bars any structure, vegetation, activity or land use of the grantor, other than utility lines, antennas, wires and poles, from casting a shadow on the collector from 3 hours before noon to 3 hours after noon between September 22 and March 21, and from 4 hours before noon to 4 hours after noon between March 22 and September 21, all eastern standard time. Alternative B instead caps the height at which the grantor's land may penetrate the airspace. The form is permissive: RSA 477:51 says authorizing it does not preclude other forms.

On the public side, RSA 674:17, I(j) directs that every New Hampshire zoning ordinance be designed to encourage the installation and use of solar, wind, or other renewable energy systems and to protect access to energy sources through the orientation of streets, lots and buildings, maximum building height, minimum setbacks, limits on the type, height and placement of vegetation, and "encouragement of the use of solar skyspace easements under RSA 477." It authorizes buffer zones and overlay districts and lets a town regulate the planting and trimming of vegetation on public and private property to protect access to renewable energy systems. That is a direction to municipalities, and it does not reach a homeowners association or a recorded covenant.

Because the restriction is contractual rather than statutory, the fight is between an owner and the board and is decided by a New Hampshire superior court, not by an agency. Under RSA 356-B:15, I, non-compliance with the condominium instruments or with RSA 356-B supports an action for sums due, damages, injunctive relief or any other remedy at law or in equity, brought by the association, its board, its managing agent, or by one or more aggrieved unit owners individually or as a class action. RSA 356-B:15, II awards all costs and attorneys' fees to the prevailing party, which in a New Hampshire solar dispute usually favors the association, since RSA 356-B:30, I gives it the exterior-appearance argument and no statute gives the owner a countervailing right.

An association that discovers panels installed without approval can seek an injunction requiring removal and can recover its legal fees from the owner. Solar skyspace easement disputes are different: RSA 477:50, III authorizes both equitable proceedings and actions at law for damages against the burdened landowner who lets a tree or an addition shade the collector, and a well-drafted easement will already fix compensation under RSA 477:50, II(c).