The impending influx of electric vehicles on your managed sites - Part 1
22nd April 2021
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22nd April 2021
With the Government’s plan to ban the sale of cars and vans powered solely by petrol or diesel from 2030 (some hybrid models will still be sold after that date) the clamber for the installation of electric charging points across the country has started and will only increase as the above date looms ever closer. So as an agent, landlord or management company (RMC or RTM) what is your role in this and, no matter how ‘green’ your intentions and desires for your developments and its residents are, what are the considerations that you must have in looking to move this inevitable progression forward?
We have set out in this Legal Update matters for the Landlord or Management Company to consider on a request from a property owner wishing to install an Electric Vehicle Charging point (“EVC”) serving their parking space.
Check the lease!
The first point of call is always check the lease or transfer (“the agreement”) affecting the property and the rights and obligations of the owner and the party responsible for managing the development.
The considerations (or at least the initial ones) are always going to be as follows:
1. What is the extent of the demise of the tenant? Does it include the parking space and the land in and around the parking space to be affected by the works required to install and maintain the EVC?
In most cases the parking space will not be in or immediately adjacent to the property of the owner. The parking space may not be demised to the owner who may just have a right to park in a specified space. It is also possible that the space may not be allocated but the property owner just has a right to use an unspecified space available at the development.
Either way, if the property owner wishes to install an EVC at the space, they will need to work on property that is beyond that demised to them under the agreement relating to their property, and as such, will require the consent of the management company and/or landlord and, potentially, where the cabling may cross the demise of other property in its route to the parking space, the consent of other property owners too.
Accordingly, any discussion around the installation of the EVC will need to be preceded by a very careful consideration of what land is affected by that installation and to whom it is demised or reserved (who ‘owns’ it)?
2. What consents are required?
Irrespective of where the parking space is in relation to the property owner’s demise and thus, whether or not the property owner is undertaking works to any area outside of their demise, it is more likely than not that the works, or an element of them, required to install the cabling or the EVC itself, will require a licence to alter under the terms of the lease or transfer.
In light of that the landlord or management company will need to consider each of the following points before looking to grant the licence:
Can it grant the required licence? See here and here why this question is more important now and must be asked following the decision in Duval -v- 11-13 Randolph Crescent ;
Should it grant the required licence? Consideration of all of the circumstances and effects to be considered;
The specific terms under which such consent is to be granted (see, for instance, matters highlighted at 4 below).
3. Who pays the costs of all of the above?
The lease or agreement is likely to provide that the costs of the grant of any licence are paid by the requesting property owner. However, it is not uncommon for a great deal of time to be incurred by the landlord, management company or, more likely, their poor managing agent, before you reach the point of discussing the costs of the licence, if it is to be granted. This will inevitably leave the landlord or management company with at least a small bill to pay and, to our mind, that should not occur.
Our advice is therefore always that where the landlord or management company is asked about consent (any consent for any matter relating to the property - not just EVCs) the first response should be to provide the requesting party with details of the costs of researching first whether licence can be considered (see point 2 above) and then the costs of granting the licence where one is to be granted. A payment on account of at least the first stage of those costs should be obtained from the requesting owner BEFORE a response to the request will be considered. That way the landlord, management company and managing agent are not working for free or at their own cost. Such payment should always be made on the basis that it is payable whether or not a licence is eventually granted.
4. Once the EVC has been installed, who is going to maintain it and what enforcement options are available in the face of default by the responsible party?
Where the EVC is on land demised to the property owner this is still an issue but perhaps less so. Where the EVC is installed on land which is the property of the landlord or management company and even more so, where the space served by the EVC is not specifically allocated to the leaseholder, this point becomes hugely important.
The licence granted to install the EVC for the parking space must set out, or the lease or transfer for the property will need to be amended to ensure that it suitably covers, not only who is liable to maintain the EVC whilst it is used and the electricity supply costs, but also the enforcement process (including recovery of the costs relating thereto) if the property owner defaults in its obligations at a later stage.
The above is by no means meant to be a substantive list of the considerations as each request will have specific needs relevant to the subject property and the location and arrangement with the parking space in question. It is however a good starting point and we trust therefore helpful.
The golden rule in such matters (and in our advice in the case of any request for licence) is to seek appropriate advice at the initial stage and certainly prior to any negotiations or agreement for the licence. Following Duval v 11-13 Randolph Crescent Limited the risk to those granting consents are more apparent and the whole issue around EVCs on parking spaces can be, in most cases, rather complicated.
If you have any queries whatsoever, please get in touch with a member of the team on 01435 897297 or email@example.com.
This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.
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