Over the course of the last year, the Province has brought in significant changes with respect to strata corporations and how they plan for and implement electrical vehicle charging. Those changes can be broken down into three basic categories: planning, infrastructure installation and approvals.
The changes also introduced two new definitions to the Strata Property Act (“SPA”). Those are:
"electric vehicle" means a motor vehicle that is a plug-in hybrid or fully electric;
"EV charging infrastructure" means equipment that is capable of supplying electricity to charge the battery of an electric vehicle[.]”
They are used throughout the legislation and can also have implications in terms of the language used in EV charging bylaws.
Planning
All strata corporations consisting of 5 or more strata lots are now required by s.94.1 of the SPA to obtain an “electrical planning report”. For strata corporations in existence on December 31, 2023 those reports must be obtained by:
• December 31, 2026 for strata corporations located in Metro Vancouver, the Fraser Valley and Capital Regional Districts
• December 31, 2028 for all other areas of the Province
• New strata corporations (those created after December 31, 2023) must obtain a report within 5 years of their creation.
• Phased strata corporations (existing or new) require a new report 5 years after each new phase is deposited in the Land Title Office (unless the phase has fewer than 5 strata lots in it).
Like Depreciation Reports, electrical planning reports must be prepared by a “qualified person” (in this case an electrical engineer, an applied science technologist or a journeyperson in an electrical trade).
The contents of the report are set out in Regulation 5.11 of the SPA. In broad terms it must assess:
• the current capacity of the strata corporation's electrical system;
• a list of existing demands on the electrical system, including, without limitation, demands from existing EV charging infrastructure, and heating, cooling, ventilation and lighting systems;
• the current peak demand on and spare capacity of the electrical system;
• an estimate of the electrical capacity that would be needed to power systems that are currently powered by an energy source other than electricity (i.e. heating sources); and
• an estimate of the electrical capacity needed for any other anticipated future demands on the electrical system.
The report must then set out:
• what needs to be done to reduce the demands on the system; and
• what otherwise could practicably be done to increase the capacity of the system.
No specific steps need to be taken in relation to the report. Rather it is meant to be a tool that allows for planning to meet the future demands of owners. Except in the case of phased strata corporations, once an electrical planning report is obtained it does not need to be updated.
The electrical planning report can be paid for through the Operating Budget or out of the Contingency Reserve Fund (“CRF”) by way of a majority vote. Other reports “respecting the installation or operation of EV charging infrastructure or the management of electricity used by EV charging infrastructure” can also be approved from the CRF by majority vote.
Installing Charging Infrastructure
The amendments make it easier for both strata corporations and individual owners to install EV charging systems.
In terms of the strata corporation:
• significant changes to the use and appearance of the common property related to the installation of ev charging infrastructure or the management of electricity used by ev charging infrastructure only require majority vote approval;
• money can be spent from the crf with only majority vote approval if the expenditure relates to the installation of ev charging infrastructure or the management of electricity used by ev charging infrastructure.
However, if money to install the infrastructure is to be raised by way of a special levy, that is still subject to ¾ vote approval. The same threshold applies to passing bylaws governing the use of that infrastructure. Rules remain an option if a majority vote is all that can be obtained.
Approvals - Dealing with owner requests
The legislation also attempts to make it easier for owners to install their own chargers. The changes do not, however, make it mandatory for strata corporations to approve those requests.
S.90.1 of the SPA sets out a process, including application requirements (see Regulation 5.2), for obtaining approval to install a charger on common property. That process will not apply where the charger is installed in what is part of a strata lot (i.e. garages in townhomes).
The new approval process will apply to:
• outside parking;
• indoor parking garages; and
• carports that are common property.
However, that approval process does not apply right away. An owner cannot invoke s.90.1 until the strata corporation has obtained an electrical planning report (or the date it ought to have). Until that time the alteration approval process and conditions set out in the bylaws apply and the strata corporation can assess (and refuse) approval based on those bylaws.
Once the strata corporation obtains an electrical planning report it cannot unreasonably refuse permission sought under s.90.1 provided:
• the installation is approved by majority vote if s.71 of the spa applies;
• the charger displays an approved label or safety marking;
• the charger will be installed in a space that the owner has exclusive use of (either as limited common property or under s.76 of the spa).
In dealing with the owner’s request under s.90.1 the strata corporation can consider (amongst other things) the following factors:
• the proposed charger’s compatibility with the existing charging infrastructure,
• the strata corporation’s electrical management system (current or future) and
• the capacity and demands (current and future) on the strata corporation’s electrical system.
If any of those factors are problematic, the strata corporation can presumably deny the request and doing so what not be unreasonable.
The request must be responded to within 3 months of the strata corporation having received it (although no consequence is spelled out for not doing so).
Granting Approval
If approval is granted in relation to a request under s.90.1 the strata corporation can decide to either:
• install the charger for the owner and charge them the costs of doing so; or
• grant the owner permission to have it installed.
Where the strata corporation elects to install it for the owner it can:
• require the owner to provide a deposit for the estimated costs of doing the work; and
• make owners who have applied together jointly and severally liable for the alteration costs;
Where the strata corporation gives the owner permission to install the charger themselves it can:
• require its approval of the contractors and material to be used;
• require the owner to modify or replace the alteration if the strata corporation installs its own system; and
• require the owner to install the charger at their own expense;
The list of terms in s.90.2(5) of the SPA that can be imposed is not exhaustive. However, any additional conditions must be reasonable. Although s.90.2(5) does not specially refer to the strata corporation requiring the owner to agree in writing to be responsible for future costs of the alteration that is a condition that can still be imposed. That will be a critical condition given the case law with respect to common property alterations. Unfortunately, such a requirement cannot be imposed by way of bylaw.
To protect the ability of an owner to use the charger to the exclusion of others, the strata corporation can grant an owner the exclusive use of the common property parking space in which the charger is installed for up to 5 years (following which it can be renewed). Paying to install a charger in a certain stall does not give the owner any greater rights to that stall than they had before that.
Moving Ahead
While owners may be anxious to begin to implement EV Charging, strata corporations should not rush the process. As can be seen from the requirements of the electrical planning reports there are a number of future situations that can be impacted by installing EV charging infrastructure. How many owners will also want air conditioning and heat pumps? What if gas fired appliances (stoves, hot water heaters, etc.) need to be changed to electric? What if all owners are not able to have those? What if some have been given permission to have them and others now cannot?
There are even questions to be asked about EV charging itself. Will it be a strata wide endeavour or will it be dealt with on a case-by-case basis? If there are limits on the capacity of system will there be shared charging stations? Or will only those who get permission early on be allowed to have chargers? How will that be managed?
A wise strata corporation will take time to consider these issues in light of the electrical planning report.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is a lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
