Are You Ready for the EV Revolution?

How to prepare for electric vehicle charger installations in common areas.

By Karen St. Onge, Esq

This article fist appeared in The Communicator, Spring 2023 Edition. 

It has been more than a decade since the Davis-Stirling Act was amended to provide for the installation of electric vehicle charging stations (EV chargers) and time of use meters in common interest developments (CIDs). Despite this legislation, installation of EV chargers in common areas has remained a rare occurrence, and the courts have not issued any appellate decisions interpreting sections 4745 and 4745.1 of the Davis-Stirling Act.

Recently, millions of dollars in rebates have become available for installation of shared EV chargers. These rebates are from the state and federal government in partnership with nonprofit organizations to further promote EV charger installations. So, how can associations take advantage of this free money and be prepared to respond to owners’ requests to install EV chargers in common areas or their exclusive use common areas (EUCA)?

UNDERSTAND THE DEVELOPMENT’S INFRASTRUCTURE

According to Will Dawson of Blue Streak Lighting and Electric, the biggest variables in terms of cost for installation of EV chargers in condominiums, in order of potential for expense, are:

• Load availability within the existing electrical gear.
• Conduit path of travel between the load center and the charger’s location.
• Distance from load center to the charger’s location.

Dawson believes that "Ultimately, load availability is the biggest impediment to most multi-family properties. Simply put, these properties were not engineered with the need for EVSE load in mind until very recently (probably 2016 onward, and that varies given the authority having jurisdiction), and adding load capacity is cost prohibitive in most applications. Thankfully, there has been some innovation in this space, but even those systems have their limitations." (The authority having jurisdiction is generally a shared responsibility between the city/county and the utility provider.)

UNDERSTAND THE RIGHTS AND OBLIGATIONS OF MEMBERS AND BOARDS

The Davis-Stirling Act establishes rights and obligations for both members of HOAs and their boards of directors to install EV chargers in the common area and EUCA. Member rights to install a private EV charger in their EUCA are subject to the HOA’s Architectural Guidelines, reasonable rules, and statutory duties set forth in Civil Code section 4745.

A board’s authority to allow a member to install an EV charger in the common area for their private use is very limited. The member must already have a "designated space" and installing the EV charger in that designated space must be "impossible or unreasonably expensive." The term "unreasonably expensive" is not defined by Civil Code section 4745. According to Blue Streak Lighting and Electric, running a conduit between the electric panel and the charger itself often drives up installation costs. If a member’s designated parking space is far from the closest electric panel (personal or HOA), the member can argue that installation in that space is unreasonably expensive compared to a space in the common area nearer to a power source.

If a member qualifies for an alternative common area space (and meets all the other requirements for installing an EV charger in the common area), the board must grant the member a license to use the common area parking space. Civil Code section 4745 does not set a minimum or maximum term for the license, but often the association’s governing documents limit the term of contracts that boards can enter into without membership approval.

Those common area parking spaces closest to electrical panels will be the most desirable and in demand. Associations should consider whether it is in their best interest to preempt use of the premium parking spaces for individual member private EV chargers, and instead install public EV chargers for the benefit of all the members.

The Davis-Stirling Act also gives the board of directors authority to install EV chargers in the common area without membership approval. There is disagreement within the legal community whether the statute overrides provisions in the CC&Rs that require membership approval of capital improvements and lengthy contract terms. In addition, associations will still need membership approval of large special assessments if needed to fund installation; so, despite the statute, a board’s ability to install EV chargers without getting membership approval is likely limited by their CC&Rs. These are issues that will probably need to be resolved by the court or legislature.

Upgrades to the common area electrical panel and trenching may be required to run electricity through the common area to the member’s parking space. This may create a dispute over who will pay for that infrastructure. The Davis-Stirling Act gives members the right to install an EV charger and does not impose a duty on the association to upgrade the common area to support the charger. While the member is responsible for the cost of installation of the EV charger, the Davis-Stirling Act is silent regarding common area upgrade costs.

DETERMINE IF THE CID QUALIFIES FOR A GOVERNMENT REBATE

Certain California nonprofit organizations, in partnership with the state, offer rebates for the cost of shared EV chargers.

Communities in Charge

Communities in Charge is a program administered by CalStart.org, in partnership with the California Energy Commission, which provides rebates for Level 2 EV chargers. (Level 2 chargers plug into a 220/240-volt outlet which are used for laundry dryers.) Calstart.org’s program manager and director of infrastructure state that to be eligible for their program, the EV chargers must be installed in a location that will allow the EV charger to be shared by the community, such as a clubhouse or pool parking lot in a planned development, or unassigned parking spaces at a condominium. A member’s private EV charger does not qualify for the rebate. Communities in Charge provides online workshops on how to apply for the rebate and general education about electric vehicle chargers. Applicants receive extra points if the property is located in a certain area, and/or has a high readiness score. Their website has great resources, including an Implementation Manual, an Application Checklist, Sample Supporting Documents, and a Site Verification Form. For information, go to www.thecommunitiesincharge.org.

CALeVIP 1.0

Another source for rebates is the CALeVIP 1.0 project, also in partnership with the California Energy Commission. The CALeVIP program is managed by The Center for Sustainable Energy. The CALeVIP 1.0 project provides rebates for shared spaces. County-specific rebates are available on a first-come first-served basis. Funding is currently available for 36 counties in California, except in Fresno County, Southern California, and Sacramento County. The Center for Sustainable Energy reports that more than 1,000 rebates for chargers at multi-unit developments in California have received funding so far. The rebates are for both Level 2 and DC fast chargers. Applications are accepted on an ongoing basis until a project reaches the end of its funding and closes applications. It is recommended that potential applicants review the regional project covering their county. A list of projects can be found at https://calevip.org/find-project.

ADOPT ARCHITECTURAL GUIDELINES FOR EV CHARGERS

An association must approve an owner’s application to install an EV charger in the common area or in the exclusive use common area if the owner agrees to: comply with the association’s architectural guidelines; maintain insurance; use a licensed contractor; and pay for installation and electricity. (Civil Code section 4745(f)(1))

If an association does not have Architectural Guidelines for EV chargers adopted before an EV charger application is submitted, the owner may only be subject to the requirements and restrictions of existing governing documents and the applicable statutes, building codes, and regulations of the authority having jurisdiction.

The architectural guidelines for EV chargers should also include a requirement that owners enter into a recorded covenant binding the current owner and future owners and requires them to: maintain, repair, and remove the EV charger; indemnify and defend the association; and other duties provided for in Civil Code section 4745.

The guidelines can also list the documents and information that the board needs to evaluate an application to install a charger. The Communities in Charge website provides examples of specifications and engineering drawings required for evaluating proposed EV charger installations.

It is also important to note that the county and city of jurisdiction may not condition approval of an application for a use permit to install an EV charger on the approval of the EV charger by a homeowner association. (Government Code section 65850.7(h).)

The California Government Code provides guidance on what associations can include in their architectural guidelines for EV chargers. Government Code section 65850.7(e) limits what conditions cities and counties can impose to those "designed to mitigate the specific, adverse impact upon the public health or safety at the lowest cost possible."

INCORPORATE STATUTORY DUTIES INTO THE ASSOCIATION’S RULES

Civil Code section 4745(f)(2) establishes that owners of EV chargers installed in the common area and EUCA are responsible for:

• Damage:to the EV charger, common areas, exclusive common areas, or adjacent units resulting from the installation, maintenance, repair, removal, or replacement of the station.
• Maintenance:removal, repair, and replacement of the EV charger until it has been removed from the common area or exclusive use common area.
• Electricity:costs associated with the EV charger.
• Disclosure:of the EV charger to buyers and the related responsibilities of the member.
• Insurance:liability coverage policy. The policy needs to be maintained by all future owners, including while the unit is rented.

Associations can incorporate these statutory duties into their rules and regulations and expand on them by providing clarification and specification. For example, one statutory duty is for the owner to maintain a liability policy that names the association as an additional insured. The statute does not specify a minimum amount of coverage; the association may establish a minimum coverage appropriate for the development. The statute also requires that owners are responsible for maintenance, repair, and removal costs. An association may specify who will be conducting this work and how and under what circumstances the charger needs to be repaired, replaced, or removed.

In addition, associations may want to establish rules that address requests for EV charger installations by owners on behalf of their tenants. Per Civil Code sections 1947.6 and 1952.7, certain lessees have a right to install EV chargers.

INSURANCE REQUIREMENTS

The Davis-Stirling Act requires owners who install EV chargers to maintain liability insurance, but does not specify the amount of coverage required. When Civil Code 4745 was first enacted, it set a liability insurance minimum of $1 million, but that minimum was later removed because of concerns about the availability of such coverage in the marketplace. However, as long as $1 million of coverage is reasonably available in the insurance marketplace, there is no prohibition to imposing such a requirement.

The duty to maintain liability insurance applies to all owners who install EV chargers within a CID, even those who have installed an EV charger within their separate interest. The only exception to this insurance requirement is owners who are using an existing standard alternating 110-volt outlet, i.e., Level 1 charger. This exception could be problematic since the use of an existing outlet to charge an EV has the same risks as an outlet specifically installed for the purpose of charging an electric vehicle (namely, tripping hazards, electrocution from damaged cords, and battery fires).

The requirement to add the association as an additional insured to the owner’s liability policy applies to any EV charger installed in the common area or EUCA of the owner. If the owner is using an existing 110-volt outlet (i.e., Level 1 charger) to trickle charge their vehicle, the statute does not impose an insurance requirement. The association is not, however, prohibited from adopting rules with reasonable restrictions for the use of an existing outlet in the common area or exclusive use area, which could include insurance requirements.

ADDITIONAL RESOURCES

EVITP Certified Electricians

A training and certification program has been developed for electricians to gain specialized training for installing and serving chargers. The Electric Vehicle Infrastructure Training Program (EVITP) is a nonprofit organization that provides training in site assessment, load calculations, the National Electric Code, and installation and maintenance best practices. It also maintains lists of certified electricians by location. https://evitp.org/find-a-contractor.

State Resources

In developing ordinances, cities and counties may refer to the recommendations published by the State of California’s Office of Planning and Research: https://opr.ca.gov/docs/ZEV_Guidebook.pdf. The "county may adopt an ordinance that modifies the checklists and standards found in the guidebook due to unique climactic, geological, seismological, or topographical conditions." (Government Code section 65850.7(g)(3).)

VCI-MUD

Another great resource for CIDs is the Vehicle Charging Innovations for Multi-Unit Dwellings website https://vci-mud.org. This is a partnership between the Center for Sustainable Energy and the U.S. Department of Energy. This website offers educational resources for condominium stakeholders, including detailed information relevant to condominium associations and managers. The "tools and resources" page at VCI-MUD is a great resource for installations at a condominium. It provides an online toolkit to help associations navigate implementing shared EV chargers in common areas, including a template survey to provide to residents, a technology selection tool, an installation checklist, and resources to help find a qualified electrician. Of particular interest are eight actual case studies of condominiums and MUDs that successfully overcame their electric vehicle charging obstacles.

Karen St. Onge is an associate at Adams Stirling, PLC, serving community associations in the San Francisco and Bay Area as general counsel.