New Legislation: SB 880 – EV Charging Stations (Round 2)

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charging_station1.jpgIn November of last year we discussed the introduction of Senate Bill 209 (SB 209), in our post entitled, “Electric Vehicle Charging Stations in Your Community?” SB 209 as singed into law could be interpreted to broadly require that homeowners associations (Associations) allow electric vehicle (EV) charging stations on common areas–an apparent violation of existing California laws. Our blog post addressed SB 209’s various defects and deficiencies, and touched on a report by CAI’s Legislative Action Committee (“CLAC”) noting the need for an amendment to the law.

On February 29, 2012, Senate Bill 880 (SB 880) was signed into law as an “urgency statute.” SB 880, effective immediately, is a “clean up” measure intended to (1) correct constitutional flaws posed by SB 209, (2) resolve a conflict with Civil Code Section 1363.07, and (3) correct apparent ambiguities within the language of the statute.

SB 880 builds on the language previously used in SB 290. Included in SB 880’s additions is the following bolded language: “any covenant, restriction, or condition…[in an Association’s governing document]…that either effectively prohibits or unreasonably restricts the installation or use of an [EV] charging station in an owner’s designated parking space, including, but not limited to, a deeded parking space, a parking space in an owner’s exclusive use common area, or a parking space that is specifically designated for use by a particular owner, or is in conflict with the provisions of this section is void and unenforceable.” The new bolded language serves two essential purposes. First, it reinforces the right of an Association to place “reasonable” restrictions on the installation of EV charging stations, and second, it narrows the scope of the statute to clarify that it applies primarily with respect to spaces already designated for the exclusive use of an individual owner.

SB 880 also provides clarification with respect to the installation of EV charging stations within the common area for the exclusive use of a single owner. Under the revised Section 1353.9(g), the “installation of an [EV] charging station for the exclusive use of an owner in a common area, that is not an exclusive use common area, shall be authorized by the association only if the installation in the owner’s designated parking space is impossible or unreasonably expensive. In such cases, the Association shall enter into a license agreement with the owner for the use of the space in a common area.” (Emphasis added). Accordingly, under the new law, an Association is not required to authorize the installation of an exclusive use EV charging station within non-exclusive use common area, unless the installation in an owner’s designated parking space is (1) impossible, or (2) unreasonably expensive. If either of those conditions are met, the Association is then required to enter into a license agreement with the owner for the exclusive use of a space in the common area. It is important to note however, that this rule applies only with respect to an owner who already has a designated (exclusive use) parking space. Owners who do not have a previously designated use parking space are not authorized under sub-section (g) to require the Association to enter into a license agreement for the exclusive use of a common area space.

Owners without an existing parking space must look to Section 1353.09(h). Under Section 1353.9(h), an owner with no previously designated parking space may still require the Association, subject to reasonable restrictions, to permit the installation of an EV charging station, so long as the use of the EV charging station is open to all members of the Association.

SB 880 also amends Civil Code Section 1363.07. Prior to the amendment, Section 1363.07 required an affirmative vote of 67% of the membership to grant exclusive use of any portion of the common area, except under certain limited situations. Under the newly included sub-section (G), a vote is no longer necessary where the installation of an EV charging station requires access through or across the common area, or where the Association enters into a license agreement for the purpose of installing an EV charging station within the common area. Installations under 1353.9(h) require no exception to the rule, as EV charging stations installed under that section must be made available to all members of an Association.

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Although SB 880 makes significant improvements to the existing EV charging station statutes, it is clear that these laws are still in their infancy. As such, many questions remain regarding their practical application and enforcement. HOAs receiving inquiries from home owners regarding the installation of an EV charging station are encouraged to contact their HOA attorneys for guidance.

Content provided by Kai MacDonald, Esq.