Delaware HOA Solar Rights

Section 1 — Overview: Solar rights for HOAs in Delaware

Delaware limits a community association's ability to prohibit rooftop solar. Under 25 Del. C. § 318(b), any covenant, restriction, or condition that "effectively prohibits or unreasonably restricts" a unit owner from installing or using a roof mounted solar energy system is "void and unenforceable," no matter when the covenant was recorded.¹ That language was added by House Bill 65 of the 150th General Assembly, signed by the Governor on August 20, 2019 (82 Del. Laws c. 208), which made covenants that "effectively prohibit or unreasonably restrict the installation of solar photovoltaic systems in Delaware void and unenforceable, regardless of the date recorded."² The statute permits only reasonable restrictions, defined as those that don't significantly increase the cost of the system or significantly decrease its efficiency or specified performance.³ Absent § 318, an association's authority over exterior modifications would be set by its declaration and the general governance framework: the Delaware Uniform Common Interest Ownership Act (DUCIOA) for communities formed on or after September 30, 2009, the Unit Property Act for older condominiums, and recorded CC&Rs plus nonprofit corporate law for pre-DUCIOA planned communities.⁴ DUCIOA is a 2008-model adoption of the Uniform Common Interest Ownership Act, effective September 30, 2009.⁵ Delaware has no separate voluntary solar-easement enabling statute; its protection runs entirely through § 318. That makes Delaware a strong-protection state, on par with the statutory-override states rather than the easement-only or no-protection tiers. The sections below detail the statute, the governance split, and the forums that resolve solar disputes.

Section 2 — The statutory framework

2A. The solar-access provision

Delaware has an express solar-access statute. Section 318(b) of Title 25 voids any covenant, restriction, or condition that effectively prohibits or unreasonably restricts a roof mounted solar energy system, and the void-and-unenforceable rule reaches covenants recorded at any time.⁶ The reasonable-restriction standard in § 318(c) mirrors the model used in strong-protection states: a restriction is permissible only if it doesn't significantly increase system cost or significantly decrease efficiency or specified performance, or if it allows an alternative system of comparable cost, efficiency, and energy conservation benefits.⁷ The section carves out conservation easements and historic preservation covenants, which it doesn't disturb.⁸ The strongest protection covers roof mounted systems; ground-mounted systems get treated more narrowly, principally through a mechanism in § 318(e) letting owners amend covenants that restrict ground-mounted systems by majority vote, rather than an automatic void-and-unenforceable rule.⁹ The statute applies to residential property including declarations under the Unit Property Act, so it operates across the split governance structure.¹⁰ Net metering and the renewable portfolio standard are utility matters administered on the electricity-supply side and don't bear on association authority; they sit outside the § 318 analysis and outside this page.

2B. The DUCIOA framework and the split structure

DUCIOA, codified at 25 Del. C. § 81-101 et seq., is Delaware's 2008-model Uniform Common Interest Ownership Act. Its statutory effective date runs September 30, 2009, and § 81-116 provides that the chapter applies to common interest communities created after that date.¹¹ DUCIOA frames an association's general powers, including the executive board's authority to adopt and enforce rules on use and architectural matters, subject to the declaration.¹² Delaware's governance splits three ways. First, DUCIOA governs communities formed on or after September 30, 2009. Second, the Unit Property Act (Title 25, ch. 22) governs condominiums formed before DUCIOA that recorded a declaration under that Act; it authorizes the council to adopt, amend, and enforce a code of regulations and rules on use of the property and common elements.¹³ Third, pre-DUCIOA planned communities answer to their recorded CC&Rs, common law, and Delaware nonprofit corporate law. On retroactivity, DUCIOA doesn't apply in full to pre-2009 communities. Section 81-119 lists specific sections — including provisions on local ordinances, eminent domain, records, and resale — that reach communities created before the effective date, but those sections apply only to events and circumstances occurring after the effective date and don't invalidate existing provisions of a declaration, bylaws, or code of regulations.¹⁴ Where a pre-existing declaration or the Unit Property Act addresses a matter, that document controls; where neither addresses it, DUCIOA controls.¹⁵

2C. Solar easements and the role of CC&Rs

Delaware doesn't appear to have a separate statute enabling voluntary recorded easements for access to sunlight; its solar protection comes through § 318, a solar-access provision, not a solar-easement provision. Because § 318 is a statute, its void-and-unenforceable rule overrides conflicting CC&R provisions on roof mounted systems, and it does so no matter the recording date of the covenant.¹⁶ Outside the reach of § 318 — matters of placement, appearance, and permissible reasonable restrictions, say — the declaration continues to control, subject to general contract and property doctrines and, for post-2009 communities, the DUCIOA framework. Architectural review therefore retains a residual role: an association may still require an application and may impose reasonable placement and aesthetic conditions, but it can't use that process to defeat a compliant installation.

Section 3 — What a Delaware HOA can and cannot do regarding solar

A. Approval and architectural review

Section 318(f) sets a notice-and-input process: an owner may install a roof mounted system if, no later than 60 days before installation, the owner notifies the association and any neighboring owner within 150 feet, and the association must provide any placement input, consistent with a reasonable restriction, no later than 30 days before the proposed installation date. If it doesn't respond in time, the owner may install as planned.¹⁷ An association may still run its architectural review under the declaration and, for DUCIOA communities, under the board's rulemaking authority, but review stays bounded by § 318.¹⁸

B. Permissible and impermissible restrictions

An association cannot prohibit or unreasonably restrict a roof mounted system; such covenants are void and unenforceable under § 318(b).¹⁹ It may impose reasonable restrictions — conditions that don't significantly increase cost or significantly decrease efficiency or specified performance — under § 318(c).²⁰ This statutory cap on association authority applies mandatorily across covered residential property.

C. Governing-document and disclosure considerations

Solar rules typically appear in the declaration and in architectural or design guidelines adopted by the board or council. Amendments to covenants that restrict solar can happen by owner vote: § 318(e) allows covenants restricting rooftop or ground-mounted systems to be amended to allow or promote solar by an affirmative vote of the property owners.²¹ For DUCIOA communities, resale certificates and public offering statements under subchapter IV disclose the governing documents that contain any solar-related rules.²² Delaware doesn't license community association managers; neither DUCIOA nor the Unit Property Act imposes a manager-licensing requirement.²³

D. Dispute resolution and remedies

A homeowner seeking to enjoin enforcement of a solar restriction or to compel approval seeks equitable relief in the Court of Chancery, which holds jurisdiction over equity, including injunctions, declaratory relief, and breach-of-fiduciary-duty claims against boards.²⁴ A claim for money damages proceeds at law in the Superior Court, whose authority to award damages carries no monetary maximum.²⁵ Smaller matters may go to the Court of Common Pleas or the Justice of the Peace Court. Delaware has no intermediate appellate court; appeals go directly to the Delaware Supreme Court.²⁶ The Common Interest Community Ombudsperson, in the Department of Justice, offers education, complaint intake, and alternative dispute resolution — it isn't the parties' attorney and doesn't adjudicate disputes.²⁷ The enacted text of § 318 contains no express prevailing-party fee-shifting provision, so the American Rule applies absent a contractual or other statutory basis.²⁸

Section 4 — Recent legislative and judicial activity

Delaware has low HOA-specific solar legislative activity. The controlling statute remains § 318 as amended in 2019.

A. Recent bills

No bill enacted or introduced over the past 24 months created or amended an HOA solar provision. The most recent § 318-related measure was Senate Bill 130 of the 152nd General Assembly:

B. Recent rulings

No published decision of the Delaware Court of Chancery, Superior Court, or Delaware Supreme Court in the past 36 months has applied § 318 to association architectural authority over solar. Recent Chancery restrictive-covenant decisions address employment non-competes, not HOA solar.³⁰

C. Active legislative debates

No active proposal to enact or amend HOA solar protection in Delaware turned up as of the verification date.

Section 5 — National positioning and related coverage

Delaware sits in the strong-protection tier. That tier includes states whose statutes void or limit association solar restrictions, such as California (Civ. Code § 714), Florida (Fla. Stat. § 163.04), Arizona (A.R.S. § 33-1816), Colorado (C.R.S. § 38-30-168), Nevada (NRS 111.239, which makes any covenant that "prohibits or unreasonably restricts or has the effect of prohibiting or unreasonably restricting" a solar system "void and unenforceable"), and Texas (Prop. Code § 202.010).³¹ A second tier — Rhode Island, South Dakota, and Tennessee, for example — enables only voluntary solar easements and doesn't override associations, and a third tier — Pennsylvania and South Carolina, for example — offers no statutory protection, leaving the declaration to control.³² Delaware's § 318(b) void-and-unenforceable rule for roof mounted systems places it squarely in the first tier for rooftop solar, though its ground-mounted treatment runs narrower. Delaware's distinctive features are a 2008-model DUCIOA, a three-part governance split — DUCIOA, the Unit Property Act, and pre-DUCIOA CC&Rs — and a court system with no intermediate appellate court and a separate equity court. For multi-state operators, the practical implication is that a blanket no-solar rule that might survive in a no-protection state is unenforceable in Delaware, and disputes may land in an equity court rather than a general civil docket.

HOA Weekly's Delaware Solar Rights coverage updates quarterly as the General Assembly and the Delaware courts act. No federal rule comparable to the FCC's OTARD rule (47 C.F.R. § 1.4000) covers rooftop solar, so Delaware's state law controls here.

1. 25 Del. C. § 318(b) (Delaware Code Online, Title 25, ch. 3) ↩
2. House Bill 65, 150th General Assembly; signed 8/20/2019; 82 Del. Laws c. 208 (Delaware General Assembly) ↩
3. 25 Del. C. § 318(c) (Delaware Code Online) ↩
4. 25 Del. C. § 2201 (Unit Property Act, short title and applicability); 25 Del. C. § 81-116 (DUCIOA) ↩
5. 25 Del. C. § 81-103(21) ("Effective date" means September 30, 2009) and § 81-116 (Delaware Code Online) ↩
6. 25 Del. C. § 318(b) (Delaware Code Online) ↩
7. 25 Del. C. § 318(c) (Delaware Code Online) ↩
8. 25 Del. C. § 318(d) (Delaware Code Online) ↩
9. 25 Del. C. § 318(e)(3) (ground-mounted solar; amendment by majority vote) (Delaware Code Online) ↩
10. 25 Del. C. § 318(e) (references declarations under the Unit Property Act, § 2201 et seq.) (Delaware Code Online) ↩
11. 25 Del. C. § 81-116 (Applicability to new common interest communities; effective date) (Delaware Code Online) ↩
12. 25 Del. C. § 81-302 and § 81-303 (powers of the association and executive board) (Delaware Code Online) ↩
13. 25 Del. C. §§ 2207, 2211 (adoption/amendment of the code of regulations and duties of council) (Delaware Code Online) ↩
14. 25 Del. C. § 81-119 (Applicability to preexisting common interest communities) (Delaware Code Online) ↩
15. 25 Del. C. § 81-119 (conflict resolution; DUCIOA controls only where neither the pre-existing document nor the Unit Property Act addresses the matter) (Delaware Code Online) ↩
16. 25 Del. C. § 318(b) (void and unenforceable) (Delaware Code Online) ↩
17. 25 Del. C. § 318(f) (60-day owner notice; 30-day association input; installation as planned if no timely response) (Delaware Code Online) ↩
18. 25 Del. C. § 81-302 (association rulemaking authority, subject to the declaration) (Delaware Code Online) ↩
19. 25 Del. C. § 318(b) (Delaware Code Online) ↩
20. 25 Del. C. § 318(c) (Delaware Code Online) ↩
21. 25 Del. C. § 318(e) (amendment of covenants restricting solar by owner vote) (Delaware Code Online) ↩
22. 25 Del. C. § 81-409 (resale certificate) and § 81-402 (public offering statement) (Delaware Code Online) ↩
23. Title 25, ch. 81 (DUCIOA) and ch. 22 (Unit Property Act) contain no community association manager licensing requirement (Delaware Code Online) ↩
24. Overview of the Delaware Court System (Court of Chancery jurisdiction over equity), Delaware Courts ↩
25. Superior Court Legal Jurisdiction (authority to award damages not subject to a monetary maximum), Delaware Courts ↩
26. Overview of the Delaware Court System (Supreme Court receives direct appeals from the Court of Chancery and Superior Court), Delaware Courts ↩
27. Services Available Through the Office of the Ombudsperson (education, complaint review, ADR; cannot provide legal advice or act as attorney), Delaware Department of Justice; see also 29 Del. C. § 2544 ↩
28. 25 Del. C. § 318 (enacted text; no prevailing-party fee-shifting clause) (Delaware Code Online) ↩
29. Senate Bill 130, 152nd General Assembly (status: Senate Elections & Government Affairs 5/16/23), Delaware General Assembly ↩
30. Delaware Courts opinions (recent restrictive-covenant decisions concern employment non-competes, not HOA solar) ↩
31. NRS 111.239 (Nevada; covenant restricting solar void and unenforceable); Cal. Civ. Code § 714; Fla. Stat. § 163.04; A.R.S. § 33-1816; C.R.S. § 38-30-168; Tex. Prop. Code § 202.010 ↩
32. "Solar Access Laws by State" (Rhode Island, South Dakota, Tennessee solar easements; Pennsylvania and South Carolina no solar access law), Palmetto ↩