Maryland Court of Special Appeals Upholds Decision Under Architectural Control Covenant Prohibiting Solar Roof Panels

On August 29, 2019, the Maryland Court of Special Appeals upheld a decision under an architectural control covenant requiring homeowners to remove solar energy panels from the front portion of their roof. The published decision may be found at 2019 WL 4072132.

This case was the first test of Md. Code Ann. Real Property Section 2-119(b) concerning solar collector systems.  The section at issue provides:

(b)(1) A restriction on use regarding land use may not impose or act to impose unreasonable limitations on the installation of a solar collector system 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.

(2) For purposes of paragraph (1) of this subsection, an unreasonable limitation includes a limitation that:

(i) Significantly increases the cost of the solar collector system; or

(ii) Significantly decreases the efficiency of the solar collector system.

The statute is one of the embodiments of Maryland’s general policy for more than fifteen years as a pro-renewable energy and pro-solar energy state.

The homeowners installed solar panels on the front and back sections of the roof of their home.  They failed to get approval to do so from the homeowners’ association prior to beginning the installation.  After the panels were installed, the homeowners sought approval which the association denied, and the association directed the homeowners to remove the panels from the front of the roof.  The homeowners ignored the association’s directive.

The association filed suit in the Circuit Court for Harford County.  The trial court agreed with the association and entered an injunction requiring the homeowners to remove the panels from the front portion of the roof.  The Court of Special Appeals affirmed the decision of the trial court.

The appellate court found that the association’s limiting the use of solar panels to the rear portion of the roof was not an unreasonable limitation.  The association had allowed seven other homeowners to install solar panels on the rear portion of their roofs.  It also found that the limitation imposed did not increase the cost of the system or decrease its efficiency.  The evidence concerning the operation of the system by the homeowners’ expert, who installed the system, boiled down to this:  more panels installed equated with the generation of more kilowatt hours of electricity.  The court found that removing some of the panels neither increased the cost of the system nor decreased the efficiency of the system.

In addition, the court found that the costs that the homeowners would incur in removing the panels from the front of the roof were “self-inflicted” wounds.

It remains to be seen if the homeowners will petition the Court of Appeals to hear this case.  Therefore, we may not have heard the final word on this issue.

For further information on restrictive covenants, please contact James Schraf at [email protected] or 443‑569‑0755.