765 ILCS 1085: What Community Associations need to know about the Illinois Electric Vehicle Charging Act

765 ILCS 1085: What Community Associations need to know about the Illinois Electric Vehicle Charging Act

Requests to install electric vehicle charging stations have become commonplace in Illinois community associations.  By 2040, experts project at least 35% of all new vehicles will be hybrids or fully electric vehicles.  The increasing number of requests to install electric vehicle charging stations by those who live in condominiums or homeowners associations has resulted in the Illinois legislature enacting the Electric Vehicle Charging Act, which took effect on January 1, 2024.  This article will discuss the new legal requirements under the Illinois Electric Vehicle Charging Act and best practices that community associations can implement to manage requests to install electric vehicle charging stations.

Are condominium and homeowners associations required to comply with the Illinois Electric Vehicle Charging Act?

Pursuant to 765 ILCS 1085/10, the Illinois Electric Vehicle Charging Act applies to “…unit owners, tenants, landlords, and associations of both newly constructed and existing single-family homes and multifamily residential buildings that have parking spaces.” 765 ILCS 1085/15 defines an “Association” as having “the meaning set forth in subsection (o) of Section 2 of the Condominium Property Act or Section 1-5 of the Common Interest Community Association Act, as applicable.” Accordingly, the Electric Vehicle Charing Act will apply to all community associations in Illinois that have parking spaces.

Can condominiums and homeowners associations ban electric vehicle charging stations?

Under the Electric Vehicle Charging Act, community associations cannot completely ban electric vehicle charging systems.  765 ILCS 1085/30 provides in pertinent part:

Any covenant, restriction, or condition contained in any deed, contract, security interest, or other instrument affecting the transfer or sale of any interest in a condominium or common interest community, and any provision of a governing document that effectively prohibits or unreasonably restricts the installation or use of an electric vehicle charging system within a unit owner’s unit or a designated parking space, including, but not limited to, a deeded parking space, a parking space in a unit owner’s exclusive use common area, or a parking space that is specifically designated for use by a particular unit owner, or is in conflict with this Section, is void and unenforceable.

However, community associations still can regulate electric vehicle charging stations.  Specifically, 765 ILCS 1085/30 states that:

(b) This Section does not apply to provisions that impose a reasonable restriction on an electric vehicle charging system. Any electric vehicle charging system installed by a unit owner pursuant to this Section is the property of that unit owner and in no case will be deemed a part of the common elements or common area.

(c) An electric vehicle charging system shall meet applicable health and safety standards and requirements imposed by State and local authorities and all other applicable zoning, land use, or other ordinances or land use permits.

Accordingly, community associations should amend their governing documents to comply with the above requirements, ensure that the declaration contains reasonable restrictions regulating charging stations, and establish a process to ensure that applicable code requirements are met.

How should community associations handle modification requests for electric vehicle charging stations?

The Electric Vehicle Charging Act requires a condominium or homeowners association to approve the installation or use of a charging system, in the same manner as other modification requests.  An approval or denial must be in writing, and if the community association does not issue a denial within 60 days from the date of receipt of the modification request, the modification case is deemed approved unless the delay is a result of a reasonable request for additional information.

If the EV charging system is placed in a common area or exclusive use common area, the following additional requirements apply:

(1) The unit owner shall first obtain prior written approval from the association to install the electric vehicle charging system and the association shall approve the installation if the unit owner agrees, in writing, to:

(A) comply with the association’s architectural standards or other reasonable conditions and restrictions for the installation of the electric vehicle charging system;

(B) engage a licensed and insured electrical contractor to install the electric vehicle charging system. The electrical contractor shall name the association, its officers, directors, and agents as additional insured and shall provide a certificate of insurance to the association evidencing such additional insured status;

(C) within 14 days after approval, provide a certificate of insurance that names the association, its officers, directors, and agents as an additional insured party under the unit owner’s insurance policy;

(D) pay for both the costs associated with the installation of and the electricity usage associated with the electric vehicle charging system; and

(E) be responsible for damage to the common elements or common areas or other units resulting from the installation, use, and removal of the electric vehicle charging system.

(2) The unit owner, and each successive unit owner of the electric vehicle charging system, is responsible for:

(A) costs for damage to the electric vehicle charging system, common area, exclusive use common area, or separate interests resulting from the installation, maintenance, repair, removal, or replacement of the electric vehicle charging system;

(B) costs for the maintenance, repair, and replacement of the electric vehicle charging system until it has been removed, and for the restoration of the common area after removal;

(C) costs of electricity associated with the charging system, which shall be based on:

(i) an embedded submetering device; or

(ii) a reasonable calculation of cost, based on the average miles driven, efficiency of the electric vehicle calculated by the United States Environmental Protection Agency, and the cost of electricity for the common area; and

(D) disclosing to a prospective buyer the existence of any electric vehicle charging system of the unit owner and the related responsibilities of the unit owner under this Section.

…

(4) The unit owner of the electric vehicle charging system, whether the electric vehicle charging system is located within the common area or exclusive use common area, shall, at all times, maintain a liability coverage policy. The unit owner that submitted the application to install the electric vehicle charging system shall provide the association with the corresponding certificate of insurance within 14 days after approval of the application. The unit owner, and each successive unit owner, shall provide the association with the certificate of insurance annually thereafter.

(5) A unit owner is not required to maintain a homeowner liability coverage policy for an existing National Electrical Manufacturers Association standard alternating current power plug.

Accordingly, when reviewing requests to install electric vehicle charging stations, the board of directors should be aware of the time limitations imposed in responding to such requests, they should determine whether a licensed electrician will be performing the installation, ensure that the appropriate insurance is in place, consult appropriate experts to ensure that it will not impose any unsafe conditions and that the proposed installation is compatible with the electrical system in the building, and ensure that all conditions associated with the installation are set forth in a written modification agreement.

Conclusion

Given that requests to install electric vehicle charging stations in condominiums and homeowners associations are becoming more common, the Illinois Electric Vehicle Charging Act provides important guidance as to how community associations should manage requests.  If a community association’s declaration or bylaws do not specifically address electric vehicles, or conflict with the new requirements contained in the Act, community associations should consult with an attorney to update their governing documents.  Similarly, if a community association is faced with a request to install an electric vehicle charging station, it is advisable to consult with a community association attorney as well, as community associations may be liable for actual damages, a civil penalty up to $500, and reasonable attorney’s fees and costs for violations of the Electric Vehicle Charging Act.

 

Kevin Hirzel is the Managing Member of Hirzel Law, PLC. Mr. Hirzel is licensed to practice law in state and federal courts in Illinois. He concentrates his practice on community association law, condominium law, homeowners association law, and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel has been recognized as a Super Lawyer in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. Hirzel Law, PLC represents community associations, condominium associations, cooperatives, and homeowners associations in Michigan and Illinois. He may be reached at 312-552-7669 or kevin@hirzellaw.com.