William D. McCracken in Board Operations on December 20, 2022
Where there’s smoke… We may have just experienced the catalyst for yet another shift in New York City’s ever-evolving regulatory landscape. In early November, fire swept through a luxury high-rise apartment building on the East Side of Manhattan, injuring dozens and requiring a dramatic rope rescue of residents by firefighters.
News reports stated that this fire was the latest caused by defective lithium-ion batteries, commonly used in e-bikes, e-scooters and other mobility devices. The FDNY was quoted as saying that there were 44 such fires in 2020 and nearly 200 so far this year.
In New York City, where there’s smoke — or some other sign of disaster — there’s sure to be new rules. The FDNY has announced a new requirement to post signage about the dangers of unsafe battery charging, and there are several bills pending before the city council to regulate the practice. It appears likely that some legislative package will be adopted as soon as spring 2023, and buildings will be required to update their current practices to comply.
Boards respond. How have co-op and condo boards reacted? In the days following the East Side fire, my office was inundated with inquiries from boards looking to respond. House rules banning e-bikes from buildings were drafted, circulated and, in some cases, adopted. (Unlike changes to the proprietary lease or bylaws, which require approval by a super-majority of residents, changes to house rules can be enacted by a majority vote of the board.) It’s hard to argue with the logic: if e-bikes are the problem, the solution is to get rid of e-bikes. The co-op board at 700-unit London Terrace Towers in Chelsea is currently debating a ban.
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However, other buildings that held off on an immediate response were soon immersed in nuanced issues that make a blanket ban appear less effective and less appropriate than it did at first glance. In some cases, this more deliberative process has resulted in rules with more limited restrictions. In other cases, boards have effectively thrown their hands up at the complexity of the issue.
For example, a ban on e-bikes might be under-inclusive because motorized wheelchairs (not to mention laptops and smartphones) also run on lithium-ion batteries. Also e-bike batteries can be charged separately, so even if you ban the bikes themselves, the batteries could still be smuggled inside and charged in dangerous conditions.
A ban is sure to be controversial because e-bikes and other micro-mobility devices have become increasingly popular in recent years. Indeed, a blanket ban on expensive personal property might be difficult to enforce if challenged in court.
Attacking the cause. Reports indicate that the root cause of the problem may be uncertified and underregulated batteries — as opposed to the UL- , ETL- or CSA-certified batteries found in most consumer devices. Many of the city’s fleet of e-bike delivery workers apparently rely on these uncertified (and cheaper) batteries, and they charge them using extension cords or power strips inside un-sprinklered apartments, thereby increasing the risk of fires. But drafting clear, enforceable rules to deal with this specific type of problem is easier said than done.
As an attorney, the only thing I can advise with complete confidence is that boards should be in touch with their insurance carriers to make sure they don’t unwittingly do anything to jeopardize their coverage. Beyond that, though, is it better to be a board that takes quick and decisive (but blunt or even counterproductive) action, or one that really digs into the issues? Although I generally prefer that boards educate themselves on the details before making decisions, that cannot be used as an excuse for inaction in the face of an acknowledged danger. It’s almost enough to make co-op and condo boards wish that New York City would step in and pass yet another Local Law, telling them exactly what they need to do.
William D. McCracken is a partner at the law firm Ganfer Shore Leeds & Zauderer. He can be reached at firstname.lastname@example.org.
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