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2008 LEGISLATIVE UPDATE -- PART 3 
CONDOMINIUMS AND SOLAR ENERGY  

            In Part 1 of this series, we discussed the new form which must be signed by persons who wish to be candidates for condominium board positions.   In Part 2 we discussed the new insurance laws which apply to condominiums.  

            For many years, homeowners associations have had to comply with Section 163.04, Florida Statutes, and permit owners to install energy devices based on renewable resources (e.g clotheslines, solar panels, etc.).  On the other hand, the words “solar energy” and “condominiums” have typically not been used in the same sentence.   As a result of the 2006 case of a Sorrentino v. River Run Condominium Association, this has now changed.

            In the Sorrentino case, the owners of a condominium unit installed two tubular skylights through the common element roof without first obtaining the approval of the association as required by Section 718.113.   Not surprisingly, the  association sued to have the skylights removed.   Surprisingly, the Fifth District Court of Appeals found that skylights were energy saving devices protected by Section 163.04 and that Section 163.04 superseded Section 718.113's requirement to obtain the association’s approval to alter the common element roof.  
 

            As a result of the Sorrentino decision, the Florida Legislature amended the following relevant portions of Sections 163.04 and 718.113 to ensure that condominium associations still control the common elements but, at the same time, to confirm that it believes in the use of solar energy, even at condominiums:
 

            163.04 Energy devices based on renewable resources. --

 (2)        ..... A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit...

718.113 Maintenance; limitation upon improvements; display of flag; hurricane shutters; display of religious decorations. –

 (8)   Notwithstanding the provisions of this section or the governing documents of a condominium or a multicondominium association, the board of administration may, without any requirement for approval of the unit owners, install upon or within the common elements or association property solar collectors, clotheslines, or other energy-efficient devices based on renewable resources for the benefit of the unit owners.

             Therefore, from and after July 1, 2008, no owner may install energy saving devices upon, within or through the common elements without first obtaining the approvals required by Section 718.113 for material alterations to the common elements. 

            On the other hand, the board is now given the power to install solar collectors, clotheslines, or other energy-efficient devices upon or within the common elements or association property for the benefit of the unit owners and may do so without having to obtain the approval of any unit owners.

             Only time will tell whether we will see more energy saving devices at condominiums or whether the above legislative changes will merely stop another Sorrentino case from occurring.
           

The firm of Taylor & Carls, P.A., with offices located in Maitland, Clearwater and Palm Coast, Florida, was founded in 1981 and has practiced in the area of community association law since that date.  This edition was prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A.  The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.  The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise the Association of subsequent changes in the law. 

 

©2008 Taylor & Carls, P.A.  All Rights Reserved.

The firm can be reached Toll Free at 1-800-395-6235 or locally at 407-660-1040.

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