Question 1

Electric Car Charging

Accepted Answer

Q: Our development has 193 flats in several blocks. There is an underground garage with 189 numbered spaces, each one part of an owner's leased property. There are no unallocated areas. Visiting workpeople are lent a space temporarily. Some residents have raised the matter of vehicle charging points. When discussed, some residents considered it unfair for any installation cost and maintenance to be borne by owners who have no need for such, maybe not even owning a vehicle. It was suggested that it is up to individual leaseholders to apply to the landlord (to whom they pay ground rent) for permission to install one on their parking space. Not all spaces are large enough or near electric supply. Suggestion was made that some owners might “sell” a space to the landlord. Our buildings are in a no-through road, just within the congestion charging zone by about 100m, such that one has to drive out to drive further into the charging zone! There are no public charging points nearby that we know about. How are other residents' associations are addressing the issue, please? FPRA Director Shaun O’Sullivan replies: You have raised a topic which is generating some considerable level of debate both within the FPRA as well as the wider leasehold community. The subject is evolving to the extent that the Department of Transport / Office of Low Vehicle Emissions (OLEV) issued a consultation document last July on the provision of Electric Vehicle Charging Points (EVCP), the responses to which they are currently considering. The FPRA’s response, should you wish to read it, can be found on the FPRA website - just search for ‘electric vehicle’. However the essence of the response is that we believe that the leasehold sector has been largely ignored in the proposals as currently formulated. You may also wish to read or re-read the article in Issue 127 (Winter 2018) of the Newsletter which attempted to outline some of the issues and challenges surrounding the subject. Any changes as the result of the OLEV consultation notwithstanding, the proposals seem to be that new builds of blocks of flats will have EVCP installed as a matter of routine and reflected in building regulations; and the proposals also seem to be that blocks undergoing material change and which have 10 or more parking will be required to have cables installed in readiness. However there appears to be no proposals in respect of existing residential buildings, including blocks of flats. Thus, as things stand, I am inclined to the view that the installation of EVCP on a communal basis will be construed as an improvement. In this regard very few residential leases (with the exception of local authority leases) provide for landlords to make improvements to leasehold property and to recover the costs of so doing through the service charge. Unsurprisingly your lease appears not to mention improvements with the thread running through being to maintain, repair, replace and reinstate. Although some might argue that the imperative to move to electrified vehicles and the consequent need to install charging points, could be construed as a inextricable necessity and not an improvement in leasehold terms, this has not, to my knowledge, been tested in the courts/tribunals and, although I am not a lawyer, my own view is that it is an improvement. However should an individual lessee wish to install a charging point they could seek consent from the landlord in accordance with your lease. This would be for the landlord to then consider although it would, in my view, be unlikely that such consent would be granted, not least because it sounds as if the retained part of the property would have to be compromised (perhaps by having to lay cables and/or conduits etc) and I can’t imagine that the landlord would want to do this on a piecemeal basis. Although leasehold case law suggests that applications to alter cannot unreasonably be withheld, this only applies to that part of the property which has been demised and not to the retained part of the property in respect of which the landlord can quite reasonably refuse consent. Although you say that each space forms “part of the owner’s leased property”, it does not, in fact, form part of that which has been demised; that is purely the flat itself. The underground car park is defined, in your lease, as forming part of the common parts and although it would appear that189 of the lessees have been granted exclusive rights of use, the space can be varied by the landlord on serving written notice in accordance with the provisions of a clause of the first schedule. By the same token the space cannot be sold as suggested as it is not “owned” by the lessee and does not form part of that which has been demised; and, even if it did, your lease, as is usual with most residential leases, prohibits the transfer of any part of the property as opposed to the whole. My current conclusion (although this could change depending on the results of the current consultation and any determination in the courts as to whether EVCP are an improvement) is that leaseholders in existing blocks and whose leases seem to prohibit improvements are likely to have to rely on public charging points. In this regard, you might wish to investigate the Go Ultra Low City Scheme (GULCS) and www.poweremystreet.co.uk which gives the option to nominate locations for public charging points. All that said, you might wish to consult your managing agent/landlord in case they have already been considering the situation and in case they have already devised an innovative solution - in which case we would be more than a little interested to hear about it. [Submitted January 2020]

Question 2

Electric Car Charging

Accepted Answer

Q: Our development has 193 flats in several blocks. There is an underground garage with 189 numbered spaces, each one part of an owner's leased property. There are no unallocated areas. Visiting workpeople are lent a space temporarily. Some residents have raised the matter of vehicle charging points. When discussed, some residents considered it unfair for any installation cost and maintenance to be borne by owners who have no need for such, maybe not even owning a vehicle. It was suggested that it is up to individual leaseholders to apply to the landlord (to whom they pay ground rent) for permission to install one on their parking space. Not all spaces are large enough or near electric supply. Suggestion was made that some owners might “sell” a space to the landlord. Our buildings are in a no-through road, just within the congestion charging zone by about 100m, such that one has to drive out to drive further into the charging zone! There are no public charging points nearby that we know about. How are other residents' associations are addressing the issue, please? FPRA Director Shaun O’Sullivan replies: You have raised a topic which is generating some considerable level of debate both within the FPRA as well as the wider leasehold community. The subject is evolving to the extent that the Department of Transport / Office of Low Vehicle Emissions (OLEV) issued a consultation document last July on the provision of Electric Vehicle Charging Points (EVCP), the responses to which they are currently considering. The FPRA’s response, should you wish to read it, can be found on the FPRA website - just search for ‘electric vehicle’. However the essence of the response is that we believe that the leasehold sector has been largely ignored in the proposals as currently formulated. You may also wish to read or re-read the article in Issue 127 (Winter 2018) of the Newsletter which attempted to outline some of the issues and challenges surrounding the subject. Any changes as the result of the OLEV consultation notwithstanding, the proposals seem to be that new builds of blocks of flats will have EVCP installed as a matter of routine and reflected in building regulations; and the proposals also seem to be that blocks undergoing material change and which have 10 or more parking will be required to have cables installed in readiness. However there appears to be no proposals in respect of existing residential buildings, including blocks of flats. Thus, as things stand, I am inclined to the view that the installation of EVCP on a communal basis will be construed as an improvement. In this regard very few residential leases (with the exception of local authority leases) provide for landlords to make improvements to leasehold property and to recover the costs of so doing through the service charge. Unsurprisingly your lease appears not to mention improvements with the thread running through being to maintain, repair, replace and reinstate. Although some might argue that the imperative to move to electrified vehicles and the consequent need to install charging points, could be construed as a inextricable necessity and not an improvement in leasehold terms, this has not, to my knowledge, been tested in the courts/tribunals and, although I am not a lawyer, my own view is that it is an improvement. However should an individual lessee wish to install a charging point they could seek consent from the landlord in accordance with your lease. This would be for the landlord to then consider although it would, in my view, be unlikely that such consent would be granted, not least because it sounds as if the retained part of the property would have to be compromised (perhaps by having to lay cables and/or conduits etc) and I can’t imagine that the landlord would want to do this on a piecemeal basis. Although leasehold case law suggests that applications to alter cannot unreasonably be withheld, this only applies to that part of the property which has been demised and not to the retained part of the property in respect of which the landlord can quite reasonably refuse consent. Although you say that each space forms “part of the owner’s leased property”, it does not, in fact, form part of that which has been demised; that is purely the flat itself. The underground car park is defined, in your lease, as forming part of the common parts and although it would appear that189 of the lessees have been granted exclusive rights of use, the space can be varied by the landlord on serving written notice in accordance with the provisions of a clause of the first schedule. By the same token the space cannot be sold as suggested as it is not “owned” by the lessee and does not form part of that which has been demised; and, even if it did, your lease, as is usual with most residential leases, prohibits the transfer of any part of the property as opposed to the whole. My current conclusion (although this could change depending on the results of the current consultation and any determination in the courts as to whether EVCP are an improvement) is that leaseholders in existing blocks and whose leases seem to prohibit improvements are likely to have to rely on public charging points. In this regard, you might wish to investigate the Go Ultra Low City Scheme (GULCS) and www.poweremystreet.co.uk which gives the option to nominate locations for public charging points. All that said, you might wish to consult your managing agent/landlord in case they have already been considering the situation and in case they have already devised an innovative solution - in which case we would be more than a little interested to hear about it. [Submitted January 2020]

Electric Car Charging

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