New Michigan Law Limits Ability of HOAs To Prohibit or Interfere With Installation of Energy-Saving Systems, Including Solar Power

In Michigan, any faceoff between a homeowner’s desire for renewable energy and the aesthetic desires of their homeowners’ association (HOA) will now be squarely won by the former. Under the newly enacted Homeowners’ Energy Policy Act (the “Act”), signed into law by Gov. Gretchen Whitmer on July 8, 2024, HOAs can no longer prohibit unit owners/homeowners from installing a wide range of energy-efficient upgrades. This includes substantial, high-tech items such as solar panels and EV charging stations, as well as old-school energy savers and sustainability efforts such as clotheslines and rain barrels.

When the new law takes effect on September 18, 2024, Michigan joins 29 other states and the District of Columbia that already ban HOAs from blocking the use of solar panels and other cost and energy-saving projects. With an estimated 1.4 million Michiganders living in homes governed by HOAs, removing this obstacle will likely lead to a significant uptick in the number of homeowners availing themselves of some form of sustainable technology.

HOAs and Local Governments Can’t Prohibit or Order the Removal of Most Energy-Saving Improvements

The following provisions in a current or future HOA agreement will now be invalid and unenforceable as contrary to public policy in Michigan:

• A provision that prohibits or requires HOA approval for a member to replace, maintain, install, or operate an energy-saving improvement or modification.
• A provision that compels or requires HOA approval for a member to make auxiliary changes needed for the installation of an energy-saving improvement or modification.

A complementary provision of the law also constrains local governments from imposing similar burdens on homeowners, as they may not enact any rules or ordinances that would require a member to obtain HOA approval to replace, maintain, install, or operate an energy-saving improvement or modification or make auxiliary changes needed for the installation of an energy-saving improvement or modification.

An “energy-saving improvement or modification” that HOAs (and local governments) can no longer prohibit include, but is not limited to:

• Clotheslines.
• Air source heat pumps.
• Ground source heat pumps.
• Insulation.
• Rain barrels.
• Reflective roofing.
• Energy-efficient appliances.
• Solar water heaters.
• Electric vehicle supply equipment.
• Energy-efficient windows.
• Energy-efficient insulation materials.

HOAs Must Adopt a Solar Energy Policy

While the Act covers many energy-saving systems, solar energy is given notable attention and treatment. Specifically, by September 18, 2025, all HOAs must adopt a written social energy policy statement that must, among other requirements, align with local, state, and federal law and set forth reasonable conditions for the installation, maintenance, and removal of solar energy systems (SES) within the community.

Solar Energy Systems Require HOA Approval

Despite the constraints on HOAs’ ability to prohibit energy-saving installations and improvements, associations still retain some power to regulate the aesthetic impact of “solar energy systems.”

Beginning on the Act’s effective date, an HOA member who wants to install a solar energy system in the member’s home or unit must submit a written application to the HOA. The HOA must then approve or deny the member’s request within 30 days of receiving the application. An HOA can reject an application if at least one of the following applies:

• The installation of the solar energy system violates a law.
• The installed system does not substantially conform with the member’s application to install the system as approved by the HOA.
• The HOA determines that the system will be installed in a fenced yard or patio rather than on the roof of a home or unit and that the system will be taller than the fence line.
• The system will extend above or beyond the roof of that home or unit by more than six inches.
• The system does not conform to the roof’s slope and had a top edge that was not parallel to the roof line.
• The system has a frame, support bracket, or visible conduit or wiring that was not silver, bronze, or black tone, and commonly available in the marketplace.

Rights and Remedies for HOA Members

If an HOA violates the Act, such as by interfering with a member’s proposed installation, failing to adopt a compliant SES policy, or failing to timely approve or deny an application for installation of an SES, a member may bring a civil action against the HOA for damages, including reasonable attorney fees and the costs incurred in bringing the action.

If you have any questions about this new legislation or your rights as a homeowner, please contact Jeff Swenarton at Kreis Enderle.