Article by Beth Grimm, P.L.C. HOA & Condo Attorney

I said I was going to give you more on legislation. As for signed bills, SB 209, a troublesome bill relating to parking in common interest developments, has been signed into law by the Governor. It involves electric charging stations. The Governor in signing the bill acknowledged problems that really need resolving but he is “green-oriented” and signed it anyway. CLAC  (the California Legislative Action arm of the Community Associations Institute – is hot on the task of cleaning up the bill as much as possible. It will take effect January 1, 2012, with or without correction (hopefully with) of what have been identified as some rather major flaws. So get ready.

What are the problems, not only with the bill, but also with practical application of it?

There are not enough parking spaces for vehicles in this State! In my many years of practice three areas jump out as the most likely subjects to trigger fights and legal disputes: people, pets and parking (often referred to as the 3 P’s). Parking problems arise mostly because there are not enough parking spaces in CIDs! In my experience most urban developments had only to provide at 1 or 2 parking spaces or a double or single garage for parking cars per residence and simply put – that is not enough. When doing amendment and restatement projects it is seldom that a board says to me “we have no parking problems – no reason to implement controls”. In fact I cannot remember the last time I heard that said, and I do more than 30 or 40 of these document update projects a year. Yes, Californians love their vehicles so much that they won’t share a commute, they collect vehicles that need storing, and they insist on having 1 car per family member 16 or older, and then they take it out on the board when there is not enough parking space for all their vehicles! Plus, the downturn in the economy has pushed people to get roommates, conjoin families, defer vehicle repairs resulting in inoperable vehicles, and let the adult children who have cars stay at home longer. And we can’t ignore the problems caused by people converting their garage space for Junior’s new room, the proverbial “man cave”, or using their garage for storage utilities, gyms, or home offices. And it is hard enough for associations to cope with the disability laws that may require boards to scrape up a handicap parking space or two.  But the reality is boards will be “asked” to find extra space to accommodate charging stations for electric vehicles. And the question will be: can they?

The new law puts boards between a “rock and a hard place”. Have you heard this old expression? Maybe it’s my midwestern upbringing. But here we are, some associations without viable solutions. Here is CLAC’s report on this bill: “SB 209, which the Governor signed: it authorizes association members to install electric vehicle charging devices in garages and exclusive use common areas. CLAC remains integrally involved in amendments to this law … [that] … will cover issues … such as its unconstitutional “taking” of property, liability for damages, and … conflict in existing law regarding members’ right to approve or disapprove such [exclusive use by members of common area] by a 2/3 vote. The Governor … signed the bill acknowledging its defects … issuing a “signing message” that directs the author to fix its deficiencies immediately.” Whew, what does that mean to you, associations?

The bill in its current state invalidates prohibitions on allowing an owner to install an electric charging station. It says: (in Civil Code Sec.1353.9 which is part of the Davis Stirling Act): “(a) Any covenant, restriction, or condition … [in a] a governing document, as defined … that effectively prohibits or restricts the installation or use of an electric vehicle charging station is void and unenforceable.”

Reasonable Restrictions are allowed, but …: Sec. (b) says: “(b(1) This section does not apply to provisions that impose reasonable restrictions on electric vehicle charging stations. However, it is the policy of the state to promote, encourage, and remove obstacles to the use of electric vehicle charging stations. … [and the restrictions must] not significantly increase the cost of the station or significantly decrease its efficiency or specified performance.” This means of course that the provision with reasonable restrictions is not automatically void, but it better be reasonable!

Boards Will Have to Be Vigilant: Owners will have to apply for architectural approval for a charging station But here’s the kicker: “( e) If an application is not denied in writing within 60 days from the date of receipt of the application, the application shall be deemed approved, unless that delay is the result of a reasonable request for additional information.” So boards will have to stay on top of these applications. Perhaps the best thing rather than taking a chance on missing this deadline is to have a nice friendly form letter ready that says something like: “Thank you for your submittal … your application is considered denied until resolution of the following matters: …:” [and then, with the help of your attorney, list the issues that need to be resolved, one of which might be getting approval of the members to allow the exclusive use of common area under Civil Code Section 1363.07]. You will also want to, if signing an approval form, make approval conditional on all the things the owner has to do (see below).

The owner is not without obligation; he/she does not get off “scot-free”.  Under the bill, owners have to:

  1. Comply with the architectural standards for the installation of the station.
  2. Engage a licensed contractor to install the station.
  3. Maintain an umbrella liability coverage policy in the amount of one million dollars ($1,000,000) covering the obligations of the owner and within 14 days of approval, provide a certificate of insurance that names the association as an additional insured under the homeowner’s insurance policy and provides right of notice of cancellation.
  4. Pay for the electricity usage associated with the station.
  5. Pay the costs of damage to the station, common areas, exclusive common areas, or adjacent units resulting from the installation, maintenance, repair, removal, or replacement of the station.
  6. Pay the costs for the maintenance, removal, repair, and replacement of the electric vehicle charging station until it has been removed from the common area or exclusive use common area.
  7. Pay the cost of electricity associated with the station.
  8. Disclose to prospective buyers the existence of any electric vehicle charging station and the related responsibilities of the homeowner.

Note: The safest thing to do will be to require a recordable amendment spelling out the obligations, in case a seller “forgets” to tell the buyer.

What happens if the association ignores this law?

  1. It might have to pay a civil penalty to the owner of $1,000.
  2. It might be responsible to pay the owner actual damages.
  3. It might have to pay owner’s attorney fees if owner prevails in litigation.

Given all these obligations, and the fact that it may not even be possible to build a charging station anywhere where cars park, to find a viable location, to accommodate requests without stepping on the rights of other owners, or be able to get or segregate the electricity to determine costs, it does not seem likely there will be a barrage of viable demands. Logistics, space, and constraints on boards in existing developments without useful common area space to provide for the stations will provide insurmountable hurdles in some cases. It will be incumbent upon boards under this new law to – investigate viable options, and document the insurmountable hurdles if it is going to say no – in other words, perform due diligence and document findings.

It’s not the end of the world folks. In fact, it is a step toward a new world. You have survived the legislators overriding of day care restrictions, installation of satellite dishes and solar equipment, and forceful consideration of drought-resistant plants. These things all seemed outrageous at the time the legislature was considering them. If we scream too loud about what the legislators can and can’t do we may start to cross over to what I would liken to the “Castle mentality” of owners (which triggered my book FINDING THE KEY TO YOUR CASTLE). That is the common proclamation that it’s a free country – my home is my castle, and “they” can’t do this to me. Boards may jump to “You can’t do that to us. It’s not fair.” But guess what, they can – and they did – with this and the rental restrictions signed into law and reported in the last E-newsletter.

Some changes have to be legislated or they won’t ever happen. There may be a good side to this bill- developers will start developing CIDs (hopefully) with room for charging stations, and cities and counties will require developers to provide some electric charging station accommodations or forego a building permit. Then maybe you can send the electric car owners over there to the newer developments! (That’s not legal advice.)

It’s tough, but it’s progress. How can Californians realistically switch to electric cars and lessen the dependence on foreign oil without this kind of push? This is a progressive state! We are an example. So – go through the usual stages, fight, outrage, denial, frustration, and finally – acceptance, and do what you can. If it’s impossible, it’s impossible. Impossibility is a defense. Not trying hard enough is not.

THIS LAW APPLIES TO ALL CIDS so get a plan together; start the investigation now! And the sooner you can get over it and do your own due diligence, the sooner you can establish the policy on this, or document why it is not possible, and move on to the next pressing problem. It’s like the satellite dish and solar installation laws – you have to live with the law so figure it out. What, if anything, is possible?

– Find out more about Beth A. Grimm, P.L.C. and her services here


Click here to review the “SB 900”

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