Description

In July 2009 Delaware enacted legislation (SS 1 for S.B. 49) prohibiting private covenants (i.e., homeowner's association rules) restricting the use of solar energy systems on residential rooftops. The law specifically prohibits any "covenant, restriction, or condition contained in a deed, contract or other legal instrument which affects the transfer, sale or any other interest in real property that prohibits or unreasonably restricts the owner of the property from using a roof mounted system for obtaining solar energy on his or her property".

Although the wording of the legislation refers generally to "solar energy", the title of the bill references only photovoltaic (PV) systems as eligible for these protections. Only single-family residential structures which are not considered common property are eligible for these protections. This includes single-family townhouses with at least two unattached sides and for which roof maintenance is the responsibility of the owner and not the association. The law originally only applied to roof-mounted systems, but SB 316 of July 2010 amended the law to include ground-mounted systems on residential property of at least a half-acre. The law allows for some reasonable restrictions on ground-mounted systems including requirements for fencing, landscaping, or other means of shielding the sight of systems from adjacent streets.

The law does not affect any covenants in existence prior to January 1, 2010, although it does allow existing restrictions to be amended with a two-thirds vote of property owners. The law does not apply to zoning restrictions or similar limitations adopted by local governments. The law also does not amend, nullify, or affect the enforceability of any conservation easement or historic preservation covenant, nor does it apply to any restrictions on land owned by a maintenance corporation or homeowner's association.