This article on whether you need permission from the Body Corporate to install solar panels has been supplied by Michael Kleinschmidt, Stratum Legal.
Question: Are we allowed to install roof solar panels for our unit and/or do we need body corporate permission?
We live in a complex of 10 unit blocks, each block comprising of 8 units (4 upstairs and 4 downstairs).
Are we allowed to install roof solar panels for our unit and/or do we need body corporate permission?
Answer: Most of the time you are able to find the answer by using the following process.
Thank you for your question in relation to installing rooftop solar panels. Most of the time you are able to find the answer by using the following process.
First, work out where the solar panels are proposed to go. In particular, the rooftop could be part of someone’s lot or alternatively the common property. If the installation location is common property, then it may also be subject to an exclusive use by-law, a lease or licence. The way to find this out is to obtain a copy of the Community Management Statement for your scheme and a copy of the survey plan/s. The survey plan/s describe the lots in the building and the common property. You then locate, on those plans, where the installation location is.
If the installation location is a part of someone’s lot, then only that lot owner can install solar panels on that area of rooftop (though they can agree to make the area available to others if they wish). If the installation location is common property then first you check if it subject to an easement; grab a title search of the common property to see if there are any easements. If there is no easement, the next thing to check is whether the area is covered by an exclusive use by-law. If so, then the by-law will generally decide the issue; that is, who has the benefit of the exclusive use and what the area can be used for.
If the installation area is on common property but not subject to an easement, or an exclusive use by-law, the next thing to check is the body corporate records; to see if the area is covered by a lease or licence. Sometimes leases or licences of the rooftop are granted to, for example, telecommunications companies (for Wi-Fi repeaters and the like). Assuming the installation location is clear of all of these interests… then you can move on!
An owner who wants to use (otherwise unallocated) roof top common property, will typically need two things; a right to install solar panels onto the common property in the installation location and a right to keep them there.
The right to install the solar panels on the common property is usually governed by the regulation module; particularly as an “improvement to common property”. Improvements are generally permissible if they are under a certain value (for example $3,000 in the Standard Module) and there are no significant amenity impacts. If the improvement meets these conditions, then the Committee can consent to the installation proposal. If not, then depending on the regulation module an ordinary resolution in a general meeting will be required.
The installation approval can be given with conditions; for example maintenance of the solar panels, what happens when they are removed, regular inspections, use of licensed contractors to install etc.
Assuming that the authority to install is obtained, you also need a continuing right to keep the solar panels in place. That could be in the form of an exclusive use by-law over the installation location (which requires a resolution without dissent in a general meeting) or a lease or license (depending on the term either a resolution without dissent or a special resolution given at a general meeting). These are pretty high barriers. Fortuitously, however, solar panels are utility infrastructure. That is, the infrastructure used for the provision of utility services, (electricity) to your lot.
Under the Land Titles Act 1994 there is a statutory easement in favour of your lot and against the common property (and indeed against the other lots) for the supply of utility services (electricity) to your lot and also for the establishing and maintaining of utility infrastructure reasonably necessary to supply the utility services (electricity). This easement will in most cases extend to solar panel installation on a common property rooftop in favour of a lot for the supply of electricity.
Easement rights “run with the land” and are therefore effectively open-ended; they come to an end when either the legislation changes or the solar panels are removed by you or your successors.
Sometimes Community Titles Schemes have by-laws which regulate the installation of solar panels, particularly where there is insufficient roof space for each lot in the scheme to have its’ own installation. Those sorts of by-laws usually regulate installation on a “first come, first served” basis and impose approval requirements. It is important to check your Community Management Statement to see whether there is such a by-law in place or indeed any other by-law which may impact the installation proposal.
Of course, the above is a general overview. You can see that there are a number of variables that you do need to check very carefully. As always, it is best to seek formal legal advice as early as possible in the process.
This post appears in Strata News #417
Have a question about permission for solar panel installation in Queensland or something to add to the article? Leave a comment below.
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