By SwedelsonGottlieb, Community Association Attorneys
We recently assisted an association’s board of directors with addressing the question of whether the association has a legal obligation under its governing documents (or under applicable law) to install, or allow for the installation of, charging stations for homeowners’ electric cars. In this case, the homeowners’ parking spaces were exclusive use common area that were assigned to specific units under the association’s condominium plan and unit grant deeds. The owner at issue wanted to install the charging device in her exclusive use common area parking space.
The first issue we had to address was whether there were any association rules or architectural guidelines in effect that prohibited the storage or placement of items in parking spaces. We advised the Board that if there were, and if there was no specific exception to that rule that allows for the storage or placement of an electric vehicle charger in parking spaces, then the board would need to prepare and adopt a rule modification allowing for that installation, following the Civil Code requirements for operating rules.
Second, we had to address how the electric charger would be installed. If the charger was proposed to be attached to and/or penetrate the common area (e.g. be mounted into the common area wall appurtenant to the parking space, or link into the common area electricity system), then approval of the association’s architectural committee would be necessary, requiring the submittal of plans and specifications for the installation to the committee for review and approval/disapproval.
The third issue we had to address was the reimbursement of the cost of the electricity used by the car charger. The association would need a way to monitor and calculate this usage and charge the owner back for same.
We advised the board that the most protective manner in which to handle this matter for the association, should the board wish to consider allowing the car charger, would be for the Board to require that a covenant be entered into between the association and the homeowner for any alterations to the common area (such as the installation of a sub-meter and electrical wiring), making the owner responsible for: (1) the cost of the modifications; (2) the maintenance, repair and replacement of the modifications; (3) indemnifying the association against claims related to the modifications; and (4) requiring the homeowner to pay all electricity charges for the charger. This covenant would also allow the association the right to pursue foreclosure against the homeowner’s unit were the association to incur costs related to the modification (e.g. electricity, common area repairs, etc.) and the homeowner did not reimburse the association for those costs. We further advised the board that the homeowner should be required to pay for the purchase and installation of a sub-meter (such as an E-Mon D-Mon sub-meter – see http://www.emon.com) to ensure accurate readings of their car’s electrical usage, as well as the cost of the preparation of the covenant by our office.
One last issue we addressed was what the board should do if the homeowner proposed to install the car charger in the general common area (as opposed to her exclusive use common area parking space). In this case, we advised the board this installation would require approval of 67% of all of the association’s homeowners, pursuant to Civil Code Section 1363.07. And, approval of the plans and specifications by the association’s architectural review committee and the owner’s assumption of responsibility for all costs and liabilities related to the car charger, as described above, would also still apply.
The facts in this scenario are not applicable to all associations or all similar scenarios. Until such time as the state legislature and/or the federal government requires common interest developments to allow the installation of electric car chargers pursuant to certain guidelines (as is the case with solar panels, satellite dishes and fair housing accommodations), this issue will continue to require an individual analysis of the facts at hand and the applicable governing documents to determine the answers to the questions raised above. We suggest an association’s board contact association legal counsel when faced with this issue.
For more information or assistance with your California Community Association’s legal issues, contact SwedelsonGottlieb at 800-372-2207