Can a Michigan condominium ban solar panels?

 

Approximately 25 states have adopted some form of a solar access statute that makes it illegal for condominium bylaws to contain a provision that completely bans the installation of solar panels. There are approximately 15 different states that have adopted solar easement statutes that uphold the validity of contractual easements for solar access. A full list of states that have adopted solar access statutes and solar easements can be found here. However, Michigan is one of the few states that has not adopted a solar access statute or a solar easement statute.

The Michigan Condominium Act determines whether the condominium bylaws can contain a provision that would ban solar panels. MCL 559.156 governs the provisions that can be contained in condominium bylaws and provides in pertinent part:

The bylaws may contain provisions:
(a) As are deemed appropriate for the administration of the condominium project not inconsistent with this act or any other applicable laws.
(b) For restrictions on the sale, lease, license to use, or occupancy of condominium units.
(c) For insuring the co-owners against risks affecting the condominium project, without prejudice to the right of each co-owner to insure his condominium unit or condominium units on his own account and for his own benefit. (emphasis added).

MCL 559.165 further provides that:

Each unit co-owner, tenant, or nonco-owner occupant shall comply with the master deed, bylaws, and rules and regulations of the condominium project and this act.

Accordingly, there is nothing in the Michigan Condominium Act that precludes a developer or condominium association from adopting condominium bylaws that would ban the installation of solar panels. While there has not been a Michigan case that has yet to expressly decide this issue, in an analogous situation, the Michigan Court of Appeals held that it was reasonable for a condominium association to enforce aesthetic restrictions. Specifically, the Michigan Court of Appeals stead that:

Every man may justly consider his home his castle and himself as the king thereof; nevertheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not to be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be.

Cohan v Riverside Park Place Condo Ass’n, Inc, 123 Mich App 743, 748; 333 NW2d 574, 576 (1983).

Moreover, the Michigan Court of Appeals held that:

[I]nherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic subsociety of necessity more restrictive as it pertains to use of condominium property than may exist outside of the condominium organization. The Declaration of Condominium involved herein is replete with examples of the curtailment of individual rights usually associated with private ownership of property.

Id. at 749.

Accordingly, it is likely that a Michigan court would uphold a ban on solar panels that is contained in the condominium bylaws based on the current state of the law. However, condominium associations and co-owners should be aware that the condominium bylaws may provide a condominium association board with discretion to approve solar panels as an addition to a common element or unit under MCL 559.147. If such discretion is provided, we have drafted a guide for items that should be analyzed in considering such a request that can be found here.

Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or kevin@hirzellaw.com.