By the condo lawyers and HOA attorneys at SwedelsonGottlieb
As reported by the Community Association Institute’s California Legislative Action Committee (CLAC), “Senate Bill 880 leapfrogged ahead of hundreds of other bills and was signed into law on February 29, 2012. Since this bill was passed as an Urgency Bill, it goes into effect immediately.”
As you may remember, in late 2011 the California Legislature pushed SB 209 through despite several flaws, and when Governor Brown signed SB 209, he admitted the bill had a number of serious flaws, such as allowing the taking of association common areas for a homeowner's private use in violation of California's Constitution and the Davis-Stirling Act (which generally requires approval of 67% of an association's membership before an owner can exclusively use common areas).
When Governor Brown signed SB 209 into law, he issued the following message:
“To the Members of the California State Senate:
Senate Bill 209 advances the important state interests of lowering vehicle emissions and decreasing dependency on foreign oil. These interests are advanced statutorily by removing unreasonable burdens in common interest developments to the installation of plug-in vehicle charging stations. Charging stations are part of the infrastructure that must be built to integrate electric vehicles into our daily lives by allowing plug-in vehicles to be recharged faster and to minimize impact to the electrical grid. I enthusiastically support this bill.
This bill, unfortunately, contains language that could permit individual homeowners to unreasonably use or occupy common areas. The author has assured me that she will pursue legislation that clearly protects the right of the common interest developments to establish reasonable rules for any use of common areas for charging stations.”
SB 880 is what the legislature calls “clean up” legislation, as it addresses the problems created by SB 209. The bill went through the Legislature on a priority basis, was signed into law on February 29, 2012, and took effect immediately.
What are the changes, you ask? Follow this link for a red-lined copy of the law showing the changes as a result of SB 880 highlighted. The statute, as revised, gives a board of directors authority to grant exclusive use of common areas to an owner to install and maintain utility lines and meters in the common area necessary to service a charging station located in the owner's garage, carport or designated parking space. This change corrects the initial version of the statute which did not clarify that the charging station itself must be in the owner’s deeded, designated or assigned parking space/area. The bill also resolves the unauthorized "taking" of common areas in violation of statute issue, as new statutory language provides that homeowner approval is not required prior to an association permitting the installation of an owner’s utility lines and meters in the common area to service an electric vehicle charging station in the owner’s parking space or area.
The new law authorizes "private" charging stations to be installed in the common area for the exclusive use of an owner, but only if installing a charging station in an owner's exclusive use common area parking area or space is impossible or unreasonably expensive. The new law requires in such case that the association and the owner enter into a license agreement for the exclusive use of the common area where the charging station is installed. It should be noted that owner approval is also specifically not required for this grant of exclusive use common area. The revised statutes can be viewed at Civil Code Section 1353.9 and Civil Code Section 1363.07.
The revised statute also gives California community associations and owners authority to install a charging station in the common area for the use of all members. It grants authority to associations to develop rules for the use of "public" charging stations, and allows associations to create new parking spaces where none previously existed to facilitate their installation. And, associations also have express authority to now create a new parking space in the common area where one did not previously exist to facilitate the installation of an electric vehicle charging station.
While we appreciate this clean up legislation, it still leaves several unanswered questions, and California community associations will undoubtedly have to address the resulting legal and practical issues of this new law. Boards of directors of associations and association managing agents are encouraged to consult with association legal counsel when addressing a request from an owner to install an electric vehicle charging station.