Electric Vehicle Charging Act

On December 8, 2023, the governor signed an amendment to the Illinois Electric Vehicle Charging Act which became effective January 1, 2024. This amendment extends the applicability of certain portions of the Act, including applying Section 30 of the Act to unit owners and associations of “both newly constructed and existing single-family homes and multifamily residential buildings that have parking spaces.” Previously, the Act applied only to newly constructed buildings.

The result of this change is that existing condominium associations and HOAs that have parking spaces will now have to comply with Section 30 of the Act. This provision outlines restrictions on how associations can handle unit owner requests to install an electric vehicle charging system. It also provides that the owner who wishes to install the charging system, and each successive owner of the system, is responsible for its installation; any electricity usage associated with its use; any maintenance, repair or replacement of the system; the cost of damage caused by its installation, use, or removal; and disclosing to prospective buyers the existence of the system and the related responsibilities of the owner.

First and foremost among the limitations affecting associations, any covenant in an association’s declaration, by-laws, rules and regulations, or elsewhere is void and unenforceable if it “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.” Designated parking spaces include deeded spaces and limited common elements assigned to a specific individual. The Act does not, however, prohibit reasonable restrictions on electric vehicle charging systems. This caveat, while somewhat vague, provides associations with a fair amount of flexibility, and its limitations will undoubtedly become clearer over time.

One way that associations can reasonably restrict electric vehicle charging systems is by requiring prior approval before installation. In fact, if the system is to be placed in a common area or exclusive use common area, the owner must obtain prior written approval from the association. If an association requires prior approval for the installation of a charging system, it must treat an owner’s request for approval in the same way it would treat an application for any alteration, modification, or improvement to the common elements or any other architectural modification. Please note, however, that if an application is not denied in writing within 60 days, it is legally deemed to have been approved, unless the delay is the result of a “reasonable request for additional information.” The 60-day deadline appears to be a hard limit, so it will be important for associations to address and respond promptly to any such owner requests. Associations should also be careful to only request supportive information that is actually relevant to the installation and use of the charging station, as requesting unrelated or excessive information could be deemed an unreasonable delay.

Any charging system installed by an owner is the property of the owner and not part of the common elements. If a unit owner wishes to install a charging system for their exclusive use anywhere other than a parking space they own or have exclusive use of, the owner may only do so if installation in the owner’s own designated parking space is impossible or unreasonably expensive. In such a case, the association can license the space to the owner.

One question that is likely to arise is where the responsibility lies if an owner’s installation of a charging station damages an electrical grid, affecting the association and other unit owners. First, the Act requires owners to hire a licensed and insured electrician to complete the installation. The electrician would hopefully recognize whether the installation would provide too great a strain on the electrical grid and warn the owner and association against completing the installation. The Act also requires the installing owner to obtain liability insurance naming the association/officers/directors/agents as additional insured parties. In the event that the damage is not avoided, the insurance would hopefully cover the cost of any damage. However, if the insurance is insufficient, the installing owner and any subsequent owner of the system would still be responsible under the Act for any damage to common elements or other units resulting from the installation, use, and removal of the system. This would include damage to the electrical grid caused by the charging system.

Another issue likely to arise is how electric vehicle charging system requests and Fair Housing Act accommodation requests interact with one another. This can occur, for example, when an owner with a disability requests an accommodation for easier access to their parking space. The FHA requires housing providers to cooperate with disabled owners to provide a reasonable accommodation for their needs. The interplay between the requirements of both state and federal laws will require an association to review charging system requests and accommodation requests carefully with counsel to make sure it does not run afoul of one Act while complying with the other.

Depending on the nature of the association and the anticipated requests, it may be prudent for an association to develop a specific policy to address charging system requests uniformly and pointedly. Policies can provide the residents with a detailed outline of information that will be needed in order for an association to begin its review process. Our office can assist in preparing such policies.

Additional questions regarding how the Act affects associations and unit owners are sure to arise over time. However, the key takeaway at this point is that associations are not required to pay or arrange for the installation, maintenance, repair, replacement, or removal of an electric vehicle charging system. If an owner wishes to have a charging system in their designated parking space, they will be responsible for all associated costs. Associations can provide reasonable restrictions pertaining to charging stations but should err on the side of permissibility until the exact limitations of the Act are more fully defined. If you have further questions about how this legislation will affect your association, we encourage you to reach out to us.