Can a Virginia HOA stop me from installing solar panels if the ban is only in their bylaws or rules, not in the recorded declaration?

Plain-English summary

Delegate Yost asked whether the 2014 amendments to Va. Code § 67-701 stop a property owners' association (POA) from enforcing a solar-panel ban that lives only in the POA's bylaws, rules, or other unrecorded instruments. The answer matters to a lot of Virginia homeowners: many POAs adopted aesthetic restrictions in the 1980s and 1990s through architectural review committees or board-adopted rules, without ever amending the recorded declaration. If those unrecorded bans no longer work, then thousands of solar installations that would have been blocked are now possible.

AG Herring read the 2014 amendments and concluded that the legislature wanted exactly that result.

The AG read the 2014 amendments to mean only recorded declarations could ban solar panels on private property. Effective July 1, 2014, § 67-701 said: "No community association shall prohibit an owner from installing a solar energy collection device on that owner's property unless the recorded declaration for that community association establishes such a prohibition." Under expressio unius est exclusio alterius (the express mention of one thing excludes others), this language excludes any other means of prohibition. Bylaws, rules, regulations, board policies, or other unrecorded instruments cannot prohibit solar panels on private property.

The AG concluded the restriction applied retrospectively, so existing unrecorded bans no longer worked. The pre-2014 version of § 67-701 had a grandfather clause for restrictive covenants adopted before July 1, 2008. The 2014 amendment removed the grandfather clause. The legislature, presumed to act with care in its word choices (Alger v. Commonwealth), would have kept a grandfather clause if it intended to grandfather existing prohibitions. The removal is meaningful. So all existing unrecorded bans, regardless of when adopted, are no longer enforceable after July 1, 2014.

The AG found this constitutional under Virginia's Contract Clause. Article I, § 11 of the Virginia Constitution prohibits laws "impairing the obligations of contract." The relationship between a POA and a homeowner is contractual. So a law that retroactively voids a contract term is a Contract Clause issue. But the Virginia Supreme Court has long held (Working Waterman's Ass'n, Allied Structural Steel) that the Contract Clause is not absolute. Three-step test:

1. Does the statute impair existing contracts? Yes, § 67-701 makes pre-2014 unrecorded prohibitions unenforceable.
2. Is the impairment substantial? No. POAs can still prohibit solar panels via recorded declarations. They can still impose reasonable size, location, and manner-of-placement restrictions by any legal means. The impairment touches only the means of enforcement, not the underlying ability to regulate.
3. Is the impairment a legitimate exercise of sovereign powers? Yes. The 2014 Act's uncodified enactment clause expressly invoked the police power "necessary for the general good of the public," responding to "the valid public need to increase the use of solar power as a means of reducing reliance on energy sources that contribute to greenhouse gas emissions." Environmental protection and energy policy are recognized as substantial and legitimate public interests (United States Trust Co. v. New Jersey).

On that reasoning the AG concluded § 67-701 was constitutional and enforceable as written.

Two carve-outs and a clarification. The opinion noted common areas (driveways shared by the community, clubhouses, pools) could still carry solar bans through recorded or unrecorded provisions; its analysis focused on private property owned by homeowners. The AG also read § 67-701 to leave POAs authority to adopt reasonable restrictions on size, location, and placement of solar panels through any legal means, not just recorded declarations.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 67-701 has been amended further since 2015, and the Virginia Property Owners' Association Act (§§ 55-508 through 55-516.2, since recodified) has also been amended. The Virginia Property Owners' Association Act statutory citations in this opinion reflect the pre-recodification numbering. Any current dispute about a solar prohibition should look at the present text and any later interpretive authority.

Common questions

What is a "recorded declaration"?
The instrument recorded in the local land records (deed book) that creates the POA and binds all the lots in the development. It is filed with the clerk of the circuit court and shows up in title searches. To amend a recorded declaration, the POA typically needs a supermajority of homeowner votes per the declaration's own amendment process.

My HOA's solar ban is in the bylaws, not the declaration. Can they still enforce it?
Per this opinion's reading of § 67-701 (as of 2014), no. The unrecorded ban is unenforceable. The HOA could attempt to amend its recorded declaration to add the prohibition, but that requires the supermajority vote process.

What if my HOA's rules just say "you need architectural review committee approval"?
That kind of provision is different from an outright ban. A POA can still impose reasonable size, location, and placement restrictions through bylaws or rules. What it cannot do is use those instruments to prohibit solar panels altogether on private property. Whether a particular architectural review process is being used to effectively ban solar panels (versus merely regulate placement) is a fact-specific question.

Can my HOA require that panels be on the back of the house, not the street-facing roof?
"Reasonable restrictions concerning the size, place, and manner of placement" are permitted under § 67-701. Whether a back-of-house-only requirement is reasonable depends on the facts: solar resource implications, whether the panels can produce enough energy from the back, whether the restriction is being used to effectively prevent installation.

What about ground-mounted solar arrays?
The statute applies to solar energy collection devices on the owner's property. Whether ground-mounted arrays count is a fact question, but they typically do. The reasonable-restrictions principle applies: an HOA could require setbacks, screening, or specific locations on the lot.

What if the declaration is amended later to ban solar?
The opinion is silent on prospective amendments. The text of § 67-701 contemplates that prohibitions in recorded declarations are valid. An amendment that adds a solar ban, properly adopted, could potentially be enforced going forward. Whether the amendment can apply to already-installed panels is a question that goes beyond the opinion.

Does this apply to condominium associations, not just POAs?
The opinion specifically addresses POAs and § 67-701, which uses "community association" language. Condominium associations are governed by a separate statutory framework (Virginia Condominium Act). The same statutory provision arguably reaches both, but condominium associations may have additional considerations about common elements versus units.

Background and statutory framework

• Va. Code § 67-701 (as amended effective July 1, 2014, by 2014 Va. Acts ch. 525): Bars community associations from prohibiting solar energy collection devices on owner's property except through recorded declarations; permits reasonable size, place, and manner-of-placement restrictions; allows common-area prohibitions through any means.
• Va. Code §§ 55-508 through 55-516.2: Virginia Property Owners' Association Act (pre-recodification numbering).
• Va. Code § 55-513: General authority of POAs to enforce documents.
• Va. Code §§ 67-100 through 67-1406: Virginia Energy Plan, the chapter in which § 67-701 sits.
• Va. Const. art. I, § 11: Contract Clause prohibition on laws impairing the obligation of contracts.

The interpretive moves:
- Express mention of recorded declarations excludes other means under expressio unius.
- Removal of pre-2008 grandfather clause shows legislative intent for retrospective effect.
- Police power can override Contract Clause concerns when the impairment is not substantial and the purpose is legitimate.
- Energy and environmental policy are legitimate police-power objectives.

Citations

• Va. Code §§ 55-508 through 55-516.2 (Virginia Property Owners' Association Act)
• Va. Code § 55-513
• Va. Code §§ 67-100 through 67-1406 (Virginia Energy Plan)
• Va. Code § 67-701
• Va. Const. art. I, § 11
• 2014 Va. Acts ch. 525
• 2013 Va. Acts ch. 357
• White v. Boundary Ass'n, Inc., 271 Va. 50 (2006)
• Sully Station II Cmty. Ass'n v. Dye, 259 Va. 282 (2000)
• Geico v. Hall, 260 Va. 349 (2000)
• Working Waterman's Ass'n of Va., Inc. v. Seafood Harvesters, Inc., 227 Va. 101 (1984)
• Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978)
• Waste Mgmt. Holdings, Inc. v. Gilmore, 64 F. Supp. 2d 537 (E.D. Va. 1999)
• City of Charleston v. Public Service Comm'n, 57 F.3d 385 (4th Cir. 1995)
• United States Trust Co. v. New Jersey, 431 U.S. 1 (1977)
• Alger v. Commonwealth, 267 Va. 255 (2004)
• Marshall v. N. Va. Transportation Auth., 275 Va. 419 (2008)
• 2014 Op. Va. Att'y Gen. No. 13-106
• 2011 Op. Va. Att'y Gen. 163
• 2000 Op. Va. Att'y Gen. 177

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/14-057_Yost.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120

April 14, 2015

The Honorable Joseph R. Yost
Member, Virginia House of Delegates
General Assembly Building
Post Office Box 406
Richmond, Virginia 23218

Dear Delegate Yost:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether, in light of recent amendments to § 67-701 of the Code of Virginia, a property owners' association ("POA") is precluded from enforcing rules and regulations that prohibit homeowners from installing solar panels on their property, when such prohibitions are not contained in the recorded declaration of the POA.

Applicable Law and Discussion

The relationship between a POA and a homeowner is contractual in nature. Generally, POAs possess broad latitude to contract with homeowners to devise and enforce rules and regulations governing the use of private property. Nevertheless, the power of a POA to restrict the use of private property is not absolute and may be restrained by applicable law. Section 67-701, part of the Virginia Energy Plan, regulates the extent to which a POA may restrict the installation of solar panels on private property. As you note, this statute recently was amended by the General Assembly. Effective July 1, 2014, the statute provides, in relevant part, as follows:

No community association shall prohibit an owner from installing a solar energy collection device on that owner's property unless the recorded declaration for that community association establishes such a prohibition.

However a community association may establish reasonable restrictions concerning the size, place, and manner of placement of such solar energy collection devices on property designated and intended for individual ownership and use.

What is noteworthy about the current language of this statute is that it permits only one procedure by which solar panels may be prohibited by community associations: by inclusion in the recorded declaration. The maxim "expressio unius est exclusio alterius" "provides that mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute." Applying this maxim, the current language of the statute must be viewed as meaning that any attempt by a POA to prohibit solar panels on private property by means other than a recorded declaration, such as rules, regulations, bylaws, policies, or other unrecorded instruments, is unenforceable.

When read as a whole, the statute also means that, with the sole exception of recorded declarations, existing prohibitions against solar panels on private property are no longer enforceable. Had the General Assembly intended to create an exception for existing community associations' prohibitions against solar panels, it could easily have done so through a "grandfather clause," such as is contained in the predecessor version of this very statute. However, the General Assembly did not do so, thereby signaling its intent that the prohibition apply to existing unrecorded prohibitions. When the General Assembly clearly intends an enactment to have such retrospective effect, its intent will govern. Thus, I must conclude that § 67-701 was intended to preclude a POA from enforcing any existing prohibition on solar panels on private property, regardless of its date of adoption, unless the prohibition is contained in the POA's recorded declaration.

The only remaining question is whether the retrospective application of this statute is constitutionally barred. Statutes with retrospective effect implicate Article I, § 11 of the Constitution of Virginia, which provides that the General Assembly shall not enact laws "impairing the obligations of contract." The constitutional prohibition against impairing the obligations of contracts (the "Contract Clause") is not absolute, however. In certain circumstances, the state is permitted to use its regulatory power in a manner that affects existing contracts. As the Virginia Supreme Court has observed, the language of the Contract Clause "is [facially] unambiguous and appears absolute," but it is not "the Draconian provision that its words might seem to imply." "[T]he Commonwealth is permitted to exercise the power[] that is vested in it for the common good, even though contracts previously formed may be affected thereby." This power commonly is known as the police power.

Courts examine three factors to determine whether a statute affecting contracts is lawful as an exercise of the state's police power. First, as a preliminary matter, it must be shown that the statute does in fact impair existing contracts. Second, it must be determined whether the impairment is substantial. Third, if the impairment is substantial, it must next be determined whether the impairment is nevertheless "a legitimate exercise of the state's sovereign powers."

Under the first part of this test, § 67-701 does in fact impair the operation of existing contracts by precluding the enforcement of unrecorded POA prohibitions that became effective prior to July 1, 2014. However, under the second part of the test, the impairment is not absolute: POAs may still prohibit solar panels, so long as they do so by recorded declarations. In addition, pursuant to the statute, community associations still retain unrestricted authority to impose reasonable restrictions on the size, location, and manner of placement of solar panels on private property. Given this overall context, I conclude that the impairment of existing contractual relationships is not substantial.

In addition, it is particularly noteworthy that the statute in question is contained in Title 67, which is entitled the "Virginia Energy Plan." The placement of this statute within the Code of Virginia evinces a legislative intent that solar panels are to be viewed as part of Virginia's overall energy policy. Indeed, the uncodified enactment clause of the amended statute provides that the recent revisions were intended as "an exercise of the police power of the Commonwealth that is necessary for the general good of the public," representing "a necessary and appropriate response to the valid public need to increase the use of solar power as a means of reducing reliance on energy sources that contribute to greenhouse gas emissions." Accordingly, in amending § 67-701, the General Assembly expressly has exercised the power "that is vested in it for the common good, even though contracts previously formed may be affected thereby." The exercise of police powers for environmental protection purposes generally has been held to be a substantial and legitimate purpose. I therefore conclude that, under the third part of the test, the restriction on enforcing certain existing bans on solar panels should be considered a legitimate exercise of Virginia's sovereign powers.

For the foregoing reasons, and bearing in mind the overriding principle that all statutes are presumed to be constitutional, I conclude that § 67-701 does not violate the constitutional prohibition against legislation impairing the obligations of contract, and it is thus enforceable as duly enacted by the General Assembly.

Conclusion

Accordingly, it is my opinion that, under § 67-701 as amended, effective July 1, 2014, a POA may prohibit solar panels on private property only through a recorded declaration but not through any other means. Other than as may be contained in recorded declarations, such prohibitions are unenforceable, regardless of when or how they were imposed. It is further my opinion that a POA retains the authority under § 67-701 to establish reasonable restrictions concerning the size, location, and manner of placement of solar panels on private property, either through a recorded declaration or by any other legal means.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General