The impending influx of electric vehicles on your managed sites - Part 2
27th April 2021
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27th April 2021
This is the second of two articles relating to the above topic.
Whilst the first article, provided last week and found here, viewed the issue from the perspective of what considerations a Landlord, RMC or RTM Company should have if a resident wanted to install an Electric Vehicle Charging point (“EVC”) serving their parking space, in this article we look at the considerations to be had by the Landlord, RMC or RTM Company where they elect to provide EVCs for the general use of the residents.
Check the lease!
As with the article last week the same opening will apply. That is that the first point of call is always going to be to 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 some of them) are always going to include:
1. Who “owns” the area(s) to be used in the installation of the EVCs?
The EVC will need to be attached to something and the supply to the EVC will run over, through or under something to reach the EVC. In each case that piece of land or wall or other structure is either going to be property reserved to the Landlord (perhaps managed by the RMC or RTM) or demised to someone else (perhaps a leaseholder or even a neighbour).
Consideration will therefore need to be had as to the route of the supply to the EVC and where it is to be placed. In each case you will need to consider whether the authority of others needs to be obtained prior to installation.
Don’t assume that as Landlord or Management Company you/the client can just put the EVC where it is convenient to place it.
2. Does the Landlord or Management Company have sufficient right to install the EVCs?
By reference to the rights reserved to the landlord in the agreements is there sufficient right to install the EVC, the meters and associated wiring. There might not be, and it is an important point to check.
3. Who is to fund the cost of installation?
It is essential to check, before getting too far into this sort of project, whether the agreements provide that funding for the project can be obtained through the communal charge. It is easy, and very much wrong, to assume that because the project is for the benefit of all owners it should be a service charge expense. Service charge funds may only lawfully be spent on the items expressly permitted within the service charge provisions within the agreements. If the agreement does not provide for it then it is highly likely that it is not lawful to fund the works from the service charge funds. So check them carefully.
4. How is the costs of running and maintaining, including updating later as the technology progresses, the EVCs and the associated equipment?
This ties in with the point at 3 above in relation to the initial installation costs. There will always be some cost of running and maintaining/updating equipment once installed. Will the service charge provisions enable the service charge to be used for those costs and, if not, how is that cost to be covered.
5. Who is going to use the EVCs and how is that right set out, or going to be set out, so as to avoid dispute?
Consider whether the use of the EVCs will give rise to any conduct or parking that might cause a nuisance or derogation from grant. For instance are you planning to put EVCs on what were originally ‘visitor parking spaces’ which will therefore now be used by residents and thus not available to visitors? It is assumed that you will be unlikely to have other “spare” spaces on any development.
6. How will you regulate and ensure recovery of power used by those using the EVCs?
Of course, the purpose of the EVC is to enable car owners to charge their vehicles and therefore consume electricity for which the cost will need to be paid. Most EVCs for public use will require a user to be registered by reference to a debit card and that will enable the taking of payment for the power usage.
You will need to be clear that the cost paid by the user covers all costs for the supply paid by the RMC, RTM Company or Landlord who has installed or is managing the EVCs.
7. Do you/your client need to obtain the consent of another party in order to install the EVCs?
Here the consideration is whether as an RMC or RTM Company you may need the consent of the Landlord or, as a head leaseholder you may need the consent of a Superior Landlord. Such consents should be obtained prior to expending too much researching the project.
8. Planning Permission, Conservation Area Consents and Building Regulations ?
Ensure that you are aware of whether any (or all!) of these are required and how the costs of obtaining anything required are going to be covered. See point 3 above on funding.
9. Insurance requirements and cost
Are the EVCs and ancillary equipment going to be adequately covered by the present buildings insurance policy and what, if any, is the additional cost. Is that additional cost recoverable through the service charge provisions in the lease and, if not, where will the additional cost be paid from? Further, is the additional costs one that a Court or FTT would consider to be a reasonable service charge cost in all of the circumstances?
The above is by no means meant to be a substantive list of the considerations for a Landlord or Management Company but just a guide as to, at least, some of the main points to consider.
Given the potential hurdles highlighted above it is quite possible that, in some cases, it will not be feasible for a Landlord or Management Company of an existing development to provide EVCs for general use because the agreements in place across the development do not enable such provision.
This will be the case on many developments given that most of the agreements will have been drafted long before any realistic perception that electric vehicles would become a normal form of personal transport. In these cases, unless and until the legislators address that issue by imposing obligations upon Landlords to install EVCs and statutory facilities to enable the cost of such a project to be covered then progress will be slow. It is of course also possible for the landlord and residents to address any failing in the agreements by way of a collective amendment to all leases. Without either of the above though then it will be the case that some developments will simply not cater for electric cars. Whilst, at present, that is not majorly an issue it could have an adverse effect on the interest and thus value of property on some estates in the future when electric car ownership becomes the norm and demand for home based EVCs a must.
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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