When rooftops have good solar access, individual owners might wish to install solar hot water or solar photovoltaic systems for their own personal use.
Generally a rooftop is part of the owners corporation’s common property - even for townhouses.
In many apartment buildings the total area with good solar access is also small, particularly relative to the number of units in the building.
The owners corporation needs to first decide whether that part of its common property roof space with good solar access is to be used for the benefit of:
- the owners corporation, to power common property assets or for a central hot water system; or
- individual lots owners, for personal energy or hot water production; or
- both of the above
Special privilege by-law required for personal installations
Prior to anything being installed on common property by individual owners, a special privilege by-law needs to be passed at a general meeting.
Such by-laws can be drawn up:
- for each individual or group of individuals wishing to use common property, at the cost of those individuals; or
- for the owners corporation, specifying the procedure by which any owner can obtain consent and the terms and conditions under they may install solar equipment on the common property.
The by-law(s) should be drafted by a competent strata lawyer, and might include provisions such as:
a) Definition of the system
All components of the system should be clearly identified by their type, model numbers, proposed location, size, weight, and any penetrations of common property. Supporting photographs, plans or drawings should also provided.
b) Pre-conditions to the commencement of work
Before any work is commenced, the owner should provide:
- a copy of any installer’s certificate of insurance relating to the installation that may be required by legislation
- a copy of the installer’s Certificate of Currency of Contractor’s All Risks insurance cover for a minimum of $10,000,000
- certification that the system’s installation will not negatively impact the:
- structural integrity of the building
- integrity of waterproofing for the roof and common property walls
- integrity of fire safety separations
c) System installation
The owner should undertake to:
- use only the services of suitably licensed and accredited installers
- meet all requirements of their local council and energy supplier
- comply with the Building Code of Australia and any relevant Australian Standards
- maintain the structural integrity of the building
- maintain the integrity of the building’s waterproofing
- make no variations to the system as defined in (a) above
- ensure minimal disturbance to other residents
- keep the common property clean and tidy during the installation
- repair any damage, either to common property or that of other residents or owners, caused by the installation
d) Maintenance of the system, common property and the property of other owners or residents
The owner should:
- maintain the system in accordance with the manufacturer’s specifications
- use only qualified and licensed tradespeople for maintenance and repair of the system
- maintain any common property at a point of contact between the system’s components and common property
- repair any damage caused by the system to common property or the property of other owners or residents
e) Removal of the system
The system could need to be de-commissioned, or even part or all of it de-installed, in order to undertake emergency repairs or necessary maintenance to any underlying common property. The by-law should outline the responsibilities of each party in such a scenario.
If the system is removed permanently, the owner may be required to restore all affected common property to its original condition.
f) Indemnity & Costs
The owner should agree to pay the full costs of:
- installing the system
- maintaining and repairing the system
- repairing any damage caused to common property or the property of other owners or residents
- removing the system and restoring affected common property to its original condition
- any work performed by the owners corporation pursuant to Section 65 of the Strata Schemes Management Act 1996
- registering the by-law
- any increase in the owners corporation’s insurance premium attributable to the system
The owner should indemnify the owners corporation against any:
- loss or damage to common property
- loss or damage to the property of other owners or residents
- injury to any person
- damage to the system as a result of work carried out by the owners corporation pursuant to Section 65 of the Strata Schemes Management Act 1996
g) Breach of the by-law
If the owner fails to fulfil obligations of the by-law, the owners corporation can:
- provide notice in writing requesting that the owner complies
- perform any necessary work if the owner fails to do so after receiving written notice
- recover the costs of performing that work
h) Rights of the owners corporation
The owners corporation should retain the right to perform emergency repairs or necessary maintenance on underlying common property, even if that necessitates de-commissioning or de-installing the system, under terms and conditions agreed to in advance by both parties and clearly stipulated in the by-law.
DISCLAIMER: The above list of considerations for inclusion in a bylaw does not constitute a by-law. Legal advice should be sought to ensure an appropriate by‐law is used in each circumstance.