California Public Resources Code Section 25405.5 took effect on January 1, 2011. It requires builders of certain homes to either (1) give home buyers the option of having a solar energy system installed in their new home; or (2) participate in an offset program that lets the builder install solar energy systems elsewhere and use the credit for that installation as an offset for not offering solar power in a new development. The requirement applies to sellers of “production homes” in projects composed of at least 50 homes. Production homes are defined as detached single family residences. The law applies to developments “in which an application for a tentative subdivision map has been deemed complete on or after January 1, 2011.”

Builder’s Perspective. The builders only have to offer solar energy systems. The buyers will decide whether they want the systems or not. The builder will have to give buyers disclosures about the solar energy system’s cost, potential energy cost savings, information about California’s solar energy system incentives and more.

To make the program successful, builders should consider recording special CC&Rs that protect the solar energy systems by limiting the height of trees that can shade the solar systems. The association’s architectural committee could be tasked with the obligation to consider plant height at maturity in connection with owner applications to install new landscaping. The association may be responsible for ensuring that trees on association-owned property do not shade solar energy systems installed on homes. The association may be responsible for policing the height of trees on homeowner lots. The additional cost of this obligation imposed on the association must be included in the association’s initial budget.

Alternatively, the owners can be authorized to enforce the no shade restriction, but will that be effective? Individual owners typically do not have the resources to mount a lawsuit to enforce CC&Rs. If the solar CC&Rs are not included as part of the Davis-Stirling ‘declaration’ then owners suing to enforce will not automatically have the right to attorneys’ fees if they prevail.

RECOMMENDATION: Association boards and managers will have to pay close attention to solar energy provisions in declarations or additional CC&Rs. If an association is tasked with enforcing solar energy restrictions, the board should make sure that expense is included in its budget. Contact us if you need assistance.