By Lilliana Farinas-Sabogal, Esq. / Published October 2021
With the all-electric Ford Mustang Mach-E currently arriving at car dealerships and the Ford F-150 Lightning arriving next spring, as well as Toyota, Nissan, GM, Audi, and so many others car makers already producing all-electric versions of their vehicles, it seems that what used to be considered a niche for adventurous Tesla explorers may become far more commonplace far sooner than many people thought. This is especially the case given that the advertised MSRP for electric models of many of these vehicles appears to be comparable to their traditional gas-powered counterparts.
While the development in this new technology is exciting for many, it has also led to unexpected issues for some condominiums.
The 2021 amendments to the Florida Condominium Act made changes to the provisions that were adopted a few years ago regarding electric vehicle charging stations. The 2018 amendments to the Florida Condominium Act stated that declarations or restrictive covenants in condominiums could not prohibit any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking space or the unit owner’s exclusive designated parking area. The statute set forth several parameters that needed to be followed in order for a unit owner to take advantage of the allowance. These included safety precautions, requirements that the unit owner bear associated costs, and similar issues.
The new changes to the Florida Condominium Act regarding electric vehicle charging station installation expands the unit owners’ rights further, by including in this section the installation of natural gas fuel stations. Like the prior allowance for electric vehicle charging stations, the new natural gas station allowance requires owners to use licensed and registered firms familiar with the installation or removal and core requirements of an electric vehicle charging station or a natural gas fuel station. Unit owners are also required to provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for claims related to the installation, maintenance, or use of these, as well as to reimburse the association for increased association insurance costs resulting from any such installation.
As with most new community association laws, their consequential effects and other related issues they may raise take some time to crop up. When the laws on this topic were newly enacted, the idea that a great many owners would be interested in this installation did not seem likely. However, even in buildings where there was not a huge interest in the issue, concerns arose particularly with the older buildings. These buildings had electrical systems that were several decades old. Concerns regarding overloading the system, interference with the electrical system, and/or lack of capacity were not really addressed in the statute. Thus, associations were left wondering how to handle “too many” requests for installation of personal charging stations if the statute required the association to allow their installation. Unfortunately, this issue was not really addressed in the 2021 revisions either. Finding an equitable way to manage the potential issues can be difficult. For example, suppose a condominium’s electrical systems are capable of adding X number of charging stations without incident. Then suppose one more installation would require a significant upgrade to the electrical system. If the requesting owner is responsible for all associated costs, should the next owner seeking to install a station bear all of the cost of the upgrade? What if he/she is the only person who wants this additional station? The statute does not answer this question or how best to handle it.
Fortunately, the idea of community charging stations has also become a little more popular. These community charging stations are typically installed in non-assigned spaces or parking areas by a third party on behalf of the association for use by any person in the parking area. The vehicle owners charging their vehicles at these charging stations usually pay the third-party provider for the use of the station using a credit card or a smart card or similar format. Of course, because these community charging stations would be installed in the common element parking areas, where no such thing existed before, these installations raised questions of material alterations and whether the approval of the unit owners was required for such an installation, whether the association had the authority to participate in the “selling” of the charge/electricity, and other related issues.
The 2021 amendments did address this point. The statute now expressly clarifies that the board of directors may install or operate an electric vehicle charging station or a natural gas fuel station on the common elements or association property, it may establish the charges or the manner of payments for the users, and that such installation would not constitute a material alteration or substantial addition to the common elements or association property.
While this is helpful, there are remaining issues, of course. The installation of a community charging station would not allow the association to prohibit personal charging station installations upon request by a unit owner, so the potential issue regarding overloaded electrical systems persists. Also, associations still need to determine how to handle a fair opportunity of use of these stations by owners and how to enforce any rules and regulations they may adopt to do so, whether to involve valet services with this, how and where to best install these stations to avoid collisions or traffic obstructions, and a whole host of other issues.
In the end, the legal development in these areas is encouraging in that the legislature is aware of and taking steps to address existing and future needs of unit owners relating to this new technology that is likely to become more and more popular. However, boards of directors and managers will still need to give much thought to how best to begin implementing changes to meet the needs of their individual communities. This might involve a survey of the building to gauge interest, followed by a discussion with an electrical engineer to assess capacity and options, ending with a meeting with the community’s attorney to discuss the proper procedures needed to protect the unit owners, the association, and the residents.
Lilliana Farinas-Sabogal is a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience in assisting community associations in their day-to-day business, management, and operational aspects of governing their communities, she assists boards of directors, unit owners, and community association managers in analyzing and resolving their often complex contractual and transactional disputes and issues. Ms. Farinas-Sabogal is also one of a select number of attorneys statewide who are board certified specialists in condominium and planned development law. For more information, email LFarinas@beckerlawyers.com or call (305) 262-4433.