KMU-Magazin No. 03, March 2022 E-charging stations in rental and condominium property
Electromobility is definitely making its way into everyday life: E-cars are booming. For a variety of reasons, many companies are considering equipping all or part of their vehicle fleets with electric vehicles. This article shows the challenges associated with electronic charging stations in this context.
In contrast to conventional combustion engines, which are tied to a network of filling stations for refueling, e-cars - with the necessary infrastructure - can turn a power socket into a gas pump. The advantage of such electronic charging stations is that e-cars can be charged at home or at work. This also opens up new possibilities for companies that have e-cars in their vehicle fleets. However, the installation of or access to charging stations is also accompanied by certain challenges:
Companies are either tenants or owners of their properties where charging stations for electric vehicles can be installed. If the companies are sole owners, there are hardly any legal issues. However, if the companies are tenants or co-owners of the property, they have to comply with various legal regulations before they can install an electronic charging station. This article will first address the question of whether a tenant is entitled to have a property with an added charging station for e-cars. Secondly, the question will be addressed for condominium owners.
Installation as a tenant ...
According to the Swiss Code of Obligations, the landlord is obliged to hand over the property in a condition suitable for its intended use and to maintain it in the same condition (Art. 256 para. 1 CO).
If someone rents a car parking space, it is generally assumed that the presumed use is the parking of a vehicle - but not the charging of the vehicle with electricity. It follows that tenants have no right to the installation of a charging station unless they have expressly agreed this with the landlord. However, this interpretation could change over time if the use of an e-car has become established as standard and a corresponding charging option is expected by a majority of tenants. However, if the landlord agrees to install a charging station at his own expense, this could entitle him to increase the rent. The installation of a charging station for e-cars is likely to be an act as a value-adding investment.
If the landlord refuses to install a charging station, however, the tenant cannot simply install it at his own expense. According to the Code of Obligations, a change to the leased property is only permitted with the written consent of the landlord (Art. 260a OR). If the landlord agrees to the installation by and at the expense of the tenant, he may only demand the dismantling of the charging station in the event of a change of tenant if the parties have agreed to this in writing. Otherwise, the charging station may remain in place at the end of the lease. In addition, the landlord must compensate the tenant for any added value that the installation brings for the future rental.
... and condominium owner
According to Art. 712a, para. 1 of the Swiss Civil Code, condominium ownership refers to the co-ownership share in a built-up plot of land which gives the co-owner the special right to exclusively use, manage and internally develop certain parts of a building. For management and construction measures in condominium ownership, the regulations of "ordinary" co-ownership apply (Art. 712g Para. 1 CC in conjunction with Art. 647c-647e CC). In particular, parking areas of a property are often segregated in the ordinary co-ownership and not in the condominium ownership. It should be noted that the condominium owners' association may also draw up its own regulations in a set of rules that differ from the statutory provisions (Art. 712g para. 1 CC).
In the case of condominium ownership, the first question is where may the charging station be installed: The situation is simple if the condominium owner wants to install the charging station in the area of her special privilege. However, this is rather the exception, because it requires that the parking space of the condominium owner is firmly separated from the other parking spaces. However, if the condominium owner has such a parking space under her special privilege, she basically has the same rights as a sole owner.
She may therefore install the charging station without the consent of the other condominium owners - provided that she obtains the electricity via an individual meter and not the common electricity meter. The installation of a charging station can hardly be qualified as a change of purpose of the property (cf. Art. 712a ZGB), which may only be carried out with the consent of the other condominium owners. Neither does such an installation change the character of the property, nor does it impair the appropriate use by the other condominium owners.
If, on the other hand, the part of the building to be equipped with the charging station belongs to the common parts, the charging station can only be installed with the consent of the other condominium owners. The installation as such constitutes a constructional measure. In the case of structural measures which the condominium owners' association must decide on, the law distinguishes between the following types of structural measures (Art. 647c-647e ZGB).
- Necessary measures: This is maintenance, restoration and renewal work, that is necessary for the preservation of the value and the serviceability of the property.
- Useful measures: This is renovation and conversion work that increases the value or improves the economic efficiency or usability of a building.
- Luxurious measures: This is construction work that merely beautifies the property or enhances its appearance or convenience of use.
Depending on the type of structural measure, the decision requires other quorums within the condominium owners' assembly. Unless otherwise stipulated in the regulations of the condominium owners' association, necessary structural measures require the majority of all condominium owners present at the meeting (Art. 647c CC). If the constructional measure is only useful, additionally the majority of the value quota votes of all condominium owners (qualified majority within the meaning of Art. 647d para. 1 CC) is also required.
In the case of luxurious structural measures, the decision quorum is even higher. Such measures must be approved by all condominium owners (Art. 647e para. 1 ZGB). Exceptions to this are luxurious measures which do not entail any costs or disadvantages for the non-consenting condominium owners. They can also be decided by a qualified majority (Art. 647e para. 2 CC).
Whether a constructional measure qualifies as necessary, useful or luxurious is always a matter of discretion and depends on the individual case. Accordingly, the case law does not present a uniform picture in this regard. We are of the opinion that the installation of a charging station for electric cars cannot (yet) be qualified as a necessary constructional measure. Whether such an installation can be classified as a useful or luxurious measure is not clear. However, it is not relevant if the condominium owner using the charging station bears the costs of installation and operation himself. In both cases, the installation can be decided by a qualified majority. As a rule, the installation and operation of the charging station does not result in any disadvantage for the other condominium owners. However, exceptions are of course conceivable, for example if the electricity consumption of the other condominium owners would be restricted during the charging process.
Assumption of operating costs
It should not be forgotten that e-charging stations not only incur installation costs (one-off costs), but also operating costs (recurring costs). With regard to the recurring costs in the case of both rental relationships and condominium ownership, it should be possible to show and bill electricity consumption separately by electricity user.
Electromobility is the trend today. The arguments for opting for electric cars as part of fleet management are obvious. However, when making the decision, the questions regarding "refueling" must not be disregarded. The "refueling" by means of e-charging stations can only be realized without the consent of third parties in sole ownership situations. If the charging station is to be realized in rented or co-owned property, this is only possible with the consent of the landlord or the other co-owners. It is therefore worthwhile to clarify the possibilities of "charging" before purchasing an e-car.
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