Plug-In Cars On The Rise – What It Means for HOAs

January 27, 2015

Plug-in, electric vehicles continue to hit the auto market and this is increasing the number of member requests to install charging stations (“EVCSs”) in association common areas and exclusive use common areas. Is your association ready to handle a higher volume of requests and increased applications? Are you aware of what your association’s obligations are and will be considering current legislation? Attorney David Wankel of the law firm of Hickey & Petchul, LLP, who specializes in community association law, has provided this valuable overview of the applicable law and how it applies to community associations.

Associations may not prohibit EVCSs, however, they can regulate them. AlthoughCivil Code §4745 provides governing documents to prohibit or unreasonably restrict the installation or use of an EVCS will be void and unenforceable, the same section also provides an association may impose reasonable restrictions (a “reasonable restriction” being defined as a restriction that does not significantly increase the cost of the EVCS, or significantly decrease its efficiency or specified performance).

Of course any EVCS installed that is required must also meet all applicable health and safety standards, as well as requirements that may be imposed by the state and/or local permitting authority. Further, the design is required to be in compliance with the California Building Standards Code.

Associations should require approval for any installation of an EVCS (or elements thereof) within common areas or exclusive use common areas. Pursuant to the Code, if approval is required, the homeowner’s application must be processed by the association in the same manner as any standard architectural request, and if not denied in writing, will be deemed approved 60 days from the date of the application (unless the association’s governing documents provide for a shorter time for architectural responses). Such applications may not be willfully avoided or delayed.

If an EVCS is proposed to be placed in common area or in an exclusive use common area, (such as an assigned space in a parking garage, etc.) the following applies:

1. The homeowner must first seek approval from the association and the association must approve the installation; if the homeowner agrees in writing, to do all of the following:
a. Comply with the community association’s architectural standards (if any) for the installation of the EVCS
b. Engage a licensed contractor to install the EVCS
c. Provide a certificate of insurance that names the community association as an additional insured under the
homeowner’s insurance policy within 14 days of approval
d. Pay for the electricity usage associated with the EVCS

2. The current owner and each successive owner of the EVCS will be responsible for all of the following:
a. Costs for damage to the EVCS, common areas, exclusive use common areas, or adjacent units resulting from the installation, maintenance, repair, removal, or replacement of the EVCS
b. Costs for the maintenance, removal, repair and replacement of the EVCS until it has been removed from the common area or exclusive use common area
c. The cost of electricity associated with the EVCS
d. Disclosing to prospective buyers the existence of any EVCS and the related responsibilities of the homeowner

3. The owner of the EVCS must, at all times, maintain liability coverage policy in the amount of $1M which names the association as a named additional insured.

In February 2012, SB880 was enacted as emergency legislation to clarify some of the property rights implicated by this relatively new law. As a result, the law now provides the installation of an EVCS for the exclusive use of an owner in a common area, that is not exclusive use common area, shall be authorized by the association only if the installation within the owner’s designated parking space is impossible or unreasonably expensive. In those cases, the law provides that the association shall enter into a license agreement with the owner for the use of the common area space, and the owner remains obligated to comply with all other statutory requirements.

As an alternative to, or in conjunction with individual EVCSs, the association may install a vehicle EVCS in the common area for use by all members. If it does, the association is required to develop appropriate terms for the use of the EVCS. The law also provides the association general authority to create a new parking space to facilitate its installation.

The foregoing represents an overview of the various rights and obligations of both owners and associations with respect to the installation of EVCSs within the association project. However, there are many more details, and the application of the applicable law to each situation, and the other association-related issues that can be implicated, vary with each instance. As such, particularly with the first installation(s) of EVCSs within an association project, it is generally recommended that the association board of directors consult with the association’s legal counsel to assure that all the parties (including the association) fully comply with applicable law, inasmuch as the penalties for non-compliance can be significant.