As we leave 2022 and enter 2023, there are some important developments that Boards and managing agents need to be aware of.
Electric Vehicle Rights Act
On November 22, 2022, Governor Hochul signed a new State law, titled the “Electric Vehicle Rights Act,” which adds a new article to the Real Property Law, Article 9-D, § 343. The new Electric Vehicle Rights Act establishes new regulations for Home Owners Associations (“HOAs”) with respect to the installation of a “vehicle charging station” on a Home Owners Property. The law goes into effect on Saturday, January 21, 2023. This law is functionally identical to the “Right to Charge” law passed in 2019 which also imposed similar restrictions on the ability of the Boards of Managers of Condominiums in the State. The Electric Vehicle Rights Act prevents HOAs from enforcing existing or enacting future rules that would ban or “effectively prohibit, or impose unreasonable limitations on, the installation or use of an electric vehicle charging station.”
However, the Electric Vehicle Rights Act does not give carte blanche to any Home Owner who wishes to install an electric vehicle charging station in any way they desire. In that regard, the Act does give HOA Boards the right to enforce a restriction on the installation of an electric vehicle charging station “owned in common by the members of the homeowners’ association” or “on property owned by the homeowners’ association.” Additionally, while not explicitly enumerated in the Electric Vehicle Rights Act, it is implied that HOAs are permitted to create reasonable rules and regulations regarding the installation and use of vehicle charging station within the association. However, the rules that HOAs may have in place or create are subject to specific limitations. In that regard, Section 342(2) of the new law states as follows:
A homeowners’ association may not adopt or enforce any rules or regulations that would effectively prohibit, or impose unreasonable limitations on, the installation or use of an electric vehicle charging station. A restriction on use which effectively prohibits the installation or use of an electric vehicle charging station is unenforceable and shall be void as contrary to public policy. For the purposes of this subdivision, an unreasonable limitation includes, but is not limited to, any restriction on use that:
(a) Inhibits the electric vehicle charging station from functioning at its intended maximum efficiency; or
(b) increases the electric vehicle charging station’s installation or maintenance costs by an amount which is estimated to be greater than ten percent of the total cost of the initial installation of the electric vehicle charging station, including the costs of labor and equipment. [Emphasis Added]
While the law does give Home Owners the right to have an electric vehicle charging station and it does not clearly state that an HOA can outright deny a request unless it is for the installation on the common areas of the association, the HOA may still be able to deny a request that is in direct contravention of reasonable rules and regulations established by the HOA Board. However, such a denial must be in writing, contain specific reasoning why the HOA is denying a Home Owner request to install an electric vehicle charging station, and be sent within sixty (60) days from the Home Owners request, or else the request shall be deemed to be automatically approved. Specifically, Section 343(4) states the following, in pertinent part:
…Any denial of a homeowner’s installation of an electric vehicle charging station by a homeowners’ association must include a detailed description of the exact basis for rejection in writing with specific examples of the homeowners’ association’s concerns, if applicable…
Since the law will go into effect on Saturday, January 21, 2023, we recommend HOA boards in New York begin to review their existing rules that specifically relate to vehicle charging stations as well as rules regarding how the approval process for alterations to homes are conducted within the HOA, so as to ensure that they do not unduly burden the installation process and, accordingly, render them in violation of the Electric Vehicle Rights Act. It will be important to have a set of house rules on the installation requirements so that the Board will have the ability to indicate that a request that is not consistent with the reasonable manner that the Board wants a system installed is not in compliance with same. If the Board does not have these rules, it will be more difficult to argue that a request is unreasonable and make it difficult, if not impossible, to deny a request to install one. If you would like our firm’s assistance creating rules to deal with electric charging station requests, please feel free to contact us.
NYC Criminal Background Check Law
On Thursday, December 8, 2022, the New York city Council discussed the proposed Fair Chance for Housing Act, which would prohibit landlords and building owners, including Co-op Boards, from obtaining and utilizing the criminal records of anyone trying to rent or buy an apartment in a multi-family dwelling in New York City. This bill would apply to apartment buyers in Co-ops and subletters in Co-ops and Condominiums in New York City.
Should the bill pass, New York City Co-op’s, and to a lesser extent Condominium Boards, will be restricted in their ability to properly vet future residents in their communities to ensure the safety and health of their respective buildings. With 31 co-sponsors of the City’s 51-member City Council, the bill, or at least some form of it, is expected to pass. This is yet another example of the NY lawmakers lacking understanding of the unique implications of Co-op ownership and that its residents and shareholders are uniquely impacted, for better or for worse, by the shareholders and residents that are privileged to be permitted to join their community. It is very difficult and expensive to address the behavior of Shareholders who default on the terms of their Proprietary Leases, and Co-op Boards need as much information as legally permissible to make an educated decision on whether a prospective shareholder/tenant should be approved to be a resident of the Co-op. The best way to deal with difficult residents is to prevent them from being residents in the first place. The lack of ability to know whether the Co-op Board is accepting a criminal would be terrible. Efforts are underway to try to prevent the passage of the law.
E-Bike and Lithium Battery Fire Crackdown
Recently, there have been numerous reports of fires in several community association buildings in the State of New York as a result of defective, non-certified, lithium-ion batteries; more specifically in E-Bikes as well as other related personal transport devices (“Electric Personal Transport Device” or “EPTD”). As Electric Personal Transport Devices continue to grow in popularity, the occurrences of these fires are increasing exponentially. In 2020 the NYPD reported there were “only” 40 fires in NYC buildings that were caused by defective batteries in these Electric Personal Transport Devices, but as of December 2022, there have been over 200 fires! This has led to many Boards considering how to handle this significant safety issue. The easiest way is to simply prohibit their entry and storage in the community association buildings. It is true that a significant portion, if not a vast majority, of EPTDs do not and will not spontaneously combust as a result of defective batteries. However, many of the EPTDs on the market use uncertified and cheaply constructed batteries that do not meet the appropriate fire safety standards established by the Underwriters Laboratories and even EPTDs that use certified batteries can combust if improperly utilized by their owner (such as not removing the battery after it has fully charged or if improperly stored). In addition, lithium-based fires are much harder to extinguish than an ordinary fire.
In that regard, Boards should immediately review the risk posed by EPTDs and decide whether to ban their entry and storage in the community association’s buildings or develop house rules regarding their storage and handling in the buildings (ie- only in specific areas, In that regard, generally speaking, most, if not all, community associations have provisions in their Governing Documents empowering their Boards to establish House Rules restricting or prohibiting EPTDs without the need for vote by their Shareholders or Unit Owners. However, please note that many personal medical transport devices, such as motorized wheelchairs, could be considered an EPTD and any complete ban on EPTDs would likely be preempted by a Reasonable Accommodation request made by a qualified Shareholder or Unit Owner.
Our office is presently working with many communities in the State to tailor restrictions to suit the needs of their respective communities. If you have any further questions regarding EPTDs and how to prepare new House Rules for your community to restrict or prohibit EPTDs, feel free to reach out to our firm and we will gladly assist you to navigate this emerging risk.