Electric Vehicle Charging Stations in HOAs – What Must Be Allowed?

Electric Vehicle Charging Stations in HOAs – What Must Be Allowed?

According to many sources on the internet, the production of Electric Vehicles will show a surge of 67% this year, and one can only imagine where this is going over time into the future. C’mon, you (as an HOA) don’t want to be the last holdout or the test case in court, do you? You (as an owner) have more rights than ever, but the onus is in many cases to be left on you to offer a solution to the board, because many boards and managers cannot part the sea of work currently on their table to see the possibilities, so they just say there are none.

Remember about 15 years ago the Feds declared that landlords and HOAs would have to accept satellite dishes in their communities – and many panicked!! Yikes, the backlash was “We are going to have to accept roofs dotted with various and sundry kinds and sizes of satellite dishes and we don’t like it one bit.”. There was a lot of initial resistance, until it the wearing down occurred, owners pushed the buttons and investigations began into options, and HOAs began to get proactive to find solutions, to avoid being backed up against a wall, having to prove there was not a way to reasonably allow the dishes, when there really was.

And ten years before that it was the legislature pushing the elimination of wood shingled roofs that Boards resisted. And ten years after that it was solar installations. Yes, I have been around a long time and have been in the middle of the fray more than once, being legislatively active for about 25 years.

So my question to you all out there in HOA land is what’re you going to do to help create a smoother transition for this movement toward electric vehicles? How’re you going to iron out the bumps in the road so to speak?

Here is the question that came to me and triggered this blog (from a long time client):

“I need an opinion on electric cars and HOA obligation to supply a plug in and who pays for electricity. It came up at our small HOA with 14 units where there is no guest parking. There’s not a common place to put a plug. Can’t imagine having to accommodate any unit owner wanting a plug in their parking space. Even in my other unit in a 90 unit complex I cannot imagine where we would put one. Look forward to hearing from you.”

My answer of course was that I would have to see the governing documents and a layout of the complex and what is around it to give any meaningful feedback.

I can tell you what California law says in a nutshell, … FIND A SOLUTION FOR PEOPLE WHO WANT CHARGERS!

Impossible you say? Be prepared to prove it. Impossibility can be an effective legal defense, but before you depend on that, I suggest you have a provider of the EVCSs (Electrical Vehicle Charging Stations) come to your site and try to identify options. If that person is willing to give you an opinion in writing that it is impossible, you have one arrow in your quiver if you get sued.

If an owner comes to you with a proposal that says it is possible, it probably is possible.

But the cost is too high, you say. The answer to this is that when it comes to money, the owner pays. He or she pays for the installation and power needed to charge his or her vehicle, and the insurance to protect the HOA from liability.

An HOA cannot make it unreasonably expensive by taking some action that results in a much higher cost unless it can be prepared to prove it’s the only option in light of things like safety issues, and not just aesthetics. If an HOA decides to make an offering of HOA sponsored charging stations, that’s an option, and if it wants to recoup costs it can consult with a knowledgeable attorney to find out legal ways to fairly allocate the costs to users.

Again, it’s much like the satellite dish and solar issues but there is a pretty glaring difference here. As to those other subjects planned developments were the target of the legislators, not condos. Condos have characteristically been treated differently when it comes to installations like dishes or solar panels in the common area because all owners, and not the Association, own the common area. But here, as to EVSCs, the legislators aren’t discriminating. They are pushing HOAs to utilize parking spaces that are in the common area of all HOAs, and in some cases usurping the exclusively assigned parking spaces for placement of the charging stations.

Like the satellite dishes and solar, HOAs may consider taking the reins and providing non-exclusive use of EVCSs installed by the HOA. In the dish situations, HOAs could consider satellite dish “farms” as some called them where the HOA could supply the dishes in one area which were subject to use by all owners to prevent the “dotting the common area haphazardly” fears.  They could do this with solar as well, but not many HOAs offered these more universal options. But the idea was that simply having to admit there was such an option seemed to propel the HOAs to search for more viable solutions to suit the individual demands if that was the preferred method of dealing with these rights.

In the case of charging stations, it’s a lot like that. The HOA can designate one area, install some stations, and allow use on a non-exclusive basis or on a basis where homeowners have cards like credit or rewards cards they can use to cause the release of electricity through a plug so they can pay for the power they use. BUT in addition, HOAs have to examine all parking options including exclusive use spaces allocated to others or for specific uses (maybe even like laundromat, swimming pool, tennis court, or clubhouse parking??).

But we don’t have places to put these things you say. The legislators very adamantly worked to head off this as an excuse by putting actual mandates into the law that said:

HOAs can grant exclusive use of common area for panels and EVCSs which exclusive use would otherwise require approval of 1/3 of the owners.

HOAs can grant exclusive use of common area for parking to enable access to an EVCS without getting approval of 1/3 of the owners which would otherwise require owner approval, even if those spaces were originally intended for use by other owners or by guests.

HOAs may create non-exclusive use parking spaces with EVCSs allows associations by creating new parking spaces where none previously existed.

But what about the liability? We don’t want the extra liability for these things you say.  The legislature headed off that excuse as well.  The California law says owners have to supply a liability insurance policy that names the HOA as an additional insured (with right of notice of cancellation) in an amount at least of $1,000,000.00 except in cases where there is an existing National Electrical Manufacturers Association standard alternating current power plug available which I believe is a plug that allows for a 110 V connection.

But how is a new owner going to know about these obligations?  The law requires an owner who has an EVCS approved to notify buyers of the obligations. An HOA can and should protect itself by requiring an owner to sign a recordable agreement that provides HOA approval and that outlines the full responsibilities of owner and his or her installer, all of which are not specified here, but which any good knowledgeable attorney would include in the recordable agreement.  The recordable agreement provides notice to buyers.

You will no doubt need a more complete analysis of any question related to your particular association because there are a host of factors that come into play that cannot be covered in a blog like this, including additional detailed parameters in the law that are pertinent to the situation of requesting and/or approving the installation of an EVCS, no matter whether you are on the requestor side or the receiving side of the equation. And architectural approval is required in an HOA BEFORE installation of anything, although it cannot be unreasonably delayed or withheld.

The detail of the EVCS parameters is found in Civil Code Sections 4600 and 4745 for homeowner associations and Section 1947.6 of the Civil Code for landlords, who are held to very similar standards.

Get signed up for the E-news soon at www.californiacondoguru soon because in December or January (I am currently mashing up two topics – and not sure which will come first) I will be covering the importance of considering the requirement of the “recordable agreements” briefly mentioned here for many different installations of many improvements that could affect or damage common area or any areas that persons other than the owner wanting the improvement could be impacted or obligations taken on by owners for these improvements that future buyers of the Unit or Lot need to be made aware of.

 

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