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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
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Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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For the past 3 months I have been going back and forth with

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For the past 3 months I have been going back and forth with my condo HOA here in Hollywood, CA over installation of an EV charging station in my exclusive use parking space. On advice of a different legal website, they are requiring I sign a covenant and that I reimburse their lawyer for drafting and filing it. I had no problem with the covenant but felt that it was not required by law so the cost, estimated by their lawyer as being between $450 and $600, should at least be split with the HOA. The board overruled me and I took the first draft of the covenant to a lawyer who assisted me in re-wording the document to remove the ambiguous wording that would leave me liable for costs of actions of other homeowners that may occur subsequent the installation, for the cost of drafting and filing the covenant without limit on those costs, for the costs of any legal action arising from the charger installation or from the covenant regardless of which party prevailed in that legal action and that allowed the HOA to remove the charging station at their “discretion” and charge me for the cost of returning the common area to its original condition. In what the HOA board is calling their “final” document, their lawyer rejected most of the changes (even though the board president thought they were reasonable) leaving me unacceptably vulnerable. Even my language capping the cost of the covenant at $700 was replaced with a flat $700 requirement. The only reason I agreed to the covenant was because I needed written HOA approval to get a $2000 rebate and any language suggesting the covenant constituted that approval was removed as well as my requirement that the HOA be signatories to the covenant. At this point we are well past the 60 days specified in section 1353.9(e) of California Code after which the installation is to be considered approved absent specific disapproval and I would like to proceed without the written approval but the HOA can certainly prevent the electrical contractor from completing the installation and the contractor would probably comply. My question is can I get a prior restraint order to prevent the HOA from intervening in the installation or what other legal remedies do I have?
Submitted: 10 months ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 10 months ago.
Thank you for your question. Please permit me to assist you with your concerns.

This is a tough question to answer. Is the spot you possess 'deeded' to you? As for the HOA bylaws and CC&Rs, I am assuming that in terms of both common areas and parking spaces, the HOA has discretion in terms of any modifications, correct? Or you do not know? Please advise!
Customer: replied 10 months ago.

The condo is deeded to me and the 2 parking spaces are designated as exclusive use common areas for my unit. I am sure the CC&Rs provide for the HOA's modification of the common areas including those designated as exclusive use. They also provide for homeowner modification to common areas needed to service the exclusive use areas. In addition to the 60 day limit for disapproval, the Davis Sterling act also specifies


For purposes of this section, "reasonable restrictions" are


restrictions that do not significantly increase the cost of the


station or significantly decrease its efficiency or specified


performance.


 


I just don't want them to interfere with the installation.

Expert:  Dimitry K., Esq. replied 10 months ago.

Thank you for your follow-up, John.

You just mentioned the spots as 'exclusive use common areas'. That makes the parking spots the property of the HOA, and not your property. because the spots are their property, they can designate the spots based on the 'underlying scheme or plan' for the whole HOA and deny building on that basis alone. Since they have a property interest that is vested, their interest to the property is much stronger than yours.

The only potential argument that I see that may be able to work if you seek a restraining order is on under public policy, specifically that private property and HOAs should permit such installations based on the claimed benefit to the environment. If you get an environmentally friendly judge, then your prior restraint order can be granted. But as the courts tend to be far more deferential to HOAs than to individual association members, I see it as an uphill struggle since they can claim that the building of such a station could lower property values (even if that is not really true).

Good luck.

Customer: replied 10 months ago.

I have complied with the provisions in section 1353 of CA code as follows:


 


(e) If approval is required for the installation or use of an electric vehicle charging station, the application for approval shall be processed and approved by the association in the same manner as an application for approval of an architectural modification to the property, and shall not be willfully avoided or delayed. The approval or denial of an application shall be in writing. 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.
(f) If the electric vehicle charging station is to be placed in a common area or an exclusive use common area, as designated in the common interest development's declaration, the following provisions apply:


(1) The owner first shall obtain approval from the association to install the electric vehicle charging station and the association shall approve the installation if the owner agrees in writing to do all of the following:


(A) Comply with the association's architectural standards for the installation of the charging station.
(B) Engage a licensed contractor to install the charging station.
(C) Within 14 days of approval, provide a certificate of insurance that names the association as an additional insured under the owner's insurance policy in the amount set forth in paragraph (3).
(D) Pay for the electricity usage associated with the charging station.


(2) The owner and each successive owner of the charging station shall be responsible for all of the following:


(A) Costs for damage to the charging station, common area, exclusive use common area, or separate interests resulting from the installation, maintenance, repair, removal, or replacement of the charging station.
(B) Costs for the maintenance, repair, and replacement of the charging station until it has been removed and for the restoration of the common area after removal.
(C) The cost of electricity associated with the charging station.
(D) Disclosing to prospective buyers the existence of any charging station of the owner and the related responsibilities of the owner under this section.


(3) The owner and each successive owner of the charging station, at all times, shall maintain a homeowner liability coverage policy in the amount of one million dollars ($1,000,000), and shall name the association as a named additional insured under the policy with a right to notice of cancellation.
(4) A homeowner shall not be required to maintain a homeowner liability coverage policy for an existing National Electrical Manufacturers Association standard alternating current power plug.

Read more: Civil Code §1353.9 http://www.davis-stirling.com/MainIndex/Statutes/CivilCode13539/tabid/3372/Default.aspx#ixzz2e5m0nIJ1 from Davis-Stirling.com by Adams Kessler PLC. If your association needs legal assistance, call us at (XXX) XXX-XXXX.

Expert:  Dimitry K., Esq. replied 10 months ago.

John,

Thank you for your follow-up. This is part of what I was referring to as a 'public policy' argument. The statute that you described is very important toward requesting a station, but going purely from the opposing point of view, if you were both in negotiations for proper terms, that could be considered a 'reasonable request for additional information' under the statute. Since the parties are still actively negotiating, the claim that the 60 days has passed can be deemed to have been 'stayed'.

I do see your point, and I do believe that you stand a good chance of obtaining the order. But at the same time I have to be realistic and state that the HOA has a legitimate basis to claim that as your negotiation has not yet concluded, neither are they required to currently acquiesce to the modification. And to be frank, I do not see the order as necessary other than if they do attempt to interfere or cease construction, something that their attorney would likely advise them against not because they have a weaker position but because it would ultimately be a waste of money and your request to build would still be ultimately denied. Currently, if built, the default conditions under statute are utilized for the contractual terms for the charging station.

Good luck.

Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 36935
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Dimitry K., Esq. and 2 other Legal Specialists are ready to help you
Expert:  Dimitry K., Esq. replied 10 months ago.

John,

As an addendum, I do not as yet see any case law pertaining to this statute, meaning that as yet nobody published an opinion as to what the courts would end up ruling upon, or whether it was ever challenged or heard in court. I can only surmise that as it the law of the land, the courts should side with your position unless you get a judge who is more traditional in legal outlook and would grant more rights to the HOA under the Davis-Stirling Act. But I still stand by my initial answer that I see no reason to seek an order for pursuing something that is not barred under law--it should only be pursued if they end up interfering with installation, and then pursuing them for additional costs stemming from their delays would be a proper approach also.

Good luck.

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